Counsel for the appellants, citing authorities which will be analysed below, submitted that the court a quo erred and misdirected itself when it granted relief which had not been sought by either party.

Counsel for the first respondent and counsel for the fourth respondent supported the court a quo's decision without legally establishing the court a quo's authority to grant orders not sought by the parties.

The fact that the court a quo granted orders not sought by the parties can be demonstrated by comparing the orders sought by the parties and the orders granted by the court a quo.

In terms of their application and the subsequent notice of amendment the appellants, who were the applicants in the court a quo, sought the following relief:

1. “Deed of Transfer No.3030/06, held in the name of Dzingai Kashumba, be and is hereby cancelled and title in respect of the remainder of Subdivision 'A' of Subdivision 'F' of Quinington of Borrowdale Estate should revert back to the second, third, and fourth Applicants.

2. Deed of Transfer No.773/2011, in the name of Tafirenyika Kambarami, be and is hereby cancelled and title in respect of Stand 553 Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate reverts back to second, third, and fourth Applicants.”

Through her opposing affidavit, Cecilia Kashumba merely sought the dismissal of the applicants' application.

The fourth respondent, in his opposing affidavit, also merely sought that the applicants' application be dismissed with costs.

In the determination of the application before it the court a quo made the following orders:

“1. It is hereby declared as follows:

1.1 That the Deed of Sale between the first applicant and the Late Dzingai Kashumba (hereinafter referred to as “the deceased” on 11 and 12 May 1999 in respect of the property described as Stands 552 and 553 Quinington Township of Subdivision A of Subdivision F of Borrowdale Estate, measuring 3,999 square metres and 4,002 square metres respectively (hereinafter referred to as “the original property”, was never cancelled.

1.2. That the balance of the purchase price due and owing by the deceased to the first applicant, as at 9 May 2001, in respect of the Deed of Sale aforesaid, was never paid.

1.3. That the transfer of 3 May 2006, in favour of the deceased, of the two properties known as certain pieces of land situate in the District of Salisbury, respectively called Stands 552 and 553, Quinington Township of Subdivision A of Subdivision F of Quinington of Borrowdale Estate, respectively on Deeds of Transfer Nos.3030/2006 and 3031/2006 (hereinafter referred to as “Stands 552 and 553 Quinington Township”) was unlawful and therefore invalid.

1.4 That the subsequent transfer of Stand 553 Quinington Township on Deed of Transfer No.773/2011 on 17 February 2011 in favour of Tafirenyika Kambarami, was unlawful and therefore invalid.

1.5 That the balance of the purchase price outstanding, due and owing by the deceased to the first applicant as at 9 May 2001 in respect of the sale and purchase of the original property was in the sum of ZW$503,573=02, being the total of ZW$337,178=77, reflected on the deceased's cheque subsequently rejected by the first applicant, and ZW$166,394=25 subsequently found by the arbitrator to have been the shortfall on the cheque amount aforesaid.

2. Notwithstanding the declaration of invalidity of the transfers referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5 and 6 below, if the 1^st respondent pays, or causes to be paid, to the applicants, or one or other of them, the one receiving payment, the others to be bound, the equivalent of the balance of the purchase price referred to in paragraph 1.5 above in the functional currency current at the time of payment, together with interest thereon as envisaged herein, then the title deeds in respect to which the transfers aforesaid have been declared unlawful and invalid shall not be set aside, and the declarations of invalidity herein shall automatically lapse.

3. Unless the equivalent amount of the balance of the purchase price referred to in paragraph 1.5 above is otherwise agreed to in writing within thirty (30) calendar days of the date of this order, or such other extended period not exceeding a further thirty (30) calendar days as they may agree to in writing, the parties shall engage the Commercial Arbitration Centre in Harare solely to determine the equivalent amount of that balance, in any of the functional currencies, and the decision of the arbitrator shall be final and binding.

4. The first respondent shall pay the equivalent amount of the balance of the purchase price referred to above within thirty (30) days of the date the amount is ascertained either by agreement between the parties, or through determination by arbitration as contemplated by paragraph 3 above, together with interest thereon at the prescribed rate from the date of such agreement or determination, whatever the case might be, to the date of payment.

5. In the event that the first respondent fails or neglects to pay as envisaged in this order, then the applicants, or one or other of them, shall ipso facto, forthwith have the right to declare, in writing, the immediate and automatic cancellation of the Deed of Sale aforesaid and, without prejudice to any other rights they might have at law, shall be entitled to keep as rouwkoop all such monies as they might have received as purchase price for the original property.

6. Subject to any rights to compensation for improvements that they have in the event that the title deeds mentioned herein have been cancelled as aforesaid, the first and fourth respondents, and all those claiming occupation through them, shall, within thirty (30) calendar days of the date of such cancellation, vacate, the respective properties occupied by them, failing which the Sheriff of Zimbabwe, or his lawful deputy or assistant deputies, or such of his agents as might be duly authorized by him, shall be empowered, authorized and directed to evict the aforesaid respondents and all those claiming occupation through them.

7. Save and except for the fourth respondent, whose costs of suit shall be borne by the first and second respondents, jointly and severally, the one paying the other to be absolved, each party shall bear its own costs”….,.

It is clear from the court a quo's orders that some of the orders it granted had not been sought by either party. It is also clear that the parties had not made submissions for or against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties' views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.

In Welkom Municipality v Masureik and Herman T/A Lotus Corp 1997 (3) SA 363…, MARAIS JA commenting on what the court should base its decision on said:

“I should add that whether or not South Africa did or did not fail to do so is a question of fact upon which there was no evidence before the court a quo, and for reasons too obvious to require enumeration, the learned Judge was not entitled to enquire into this issue of fact after reserving judgment and without any reference to the parties, and then to decide it. Compare Kauesa v Minister of Home Affairs and Others 1996 (4) SA 965 (NmS) at 973H–974C.”…,.

In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA…, said:

“The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly, the litigant's case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not a judicial officer.

It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the Judge's point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.

To produce a wide–ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position.

Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued?

In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.”

Before leaving this aspect of the appeal I consider it appropriate to refer to what was said by BHAGWATI J…, in M.M. Pathak v Union (1978) 3 SCR 334 in relation to the practice of the Supreme Court of India:

“It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case.”…,.

In Groenewald NO and Anor v Swanepoel 2002 (6) SA 724…, PICKERING J, commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence and submissions of the parties said:

“It was therefore the duty of the learned Judge to have informed plaintiff's counsel of the relevant point, more especially where that point was, in her view, conclusive of the matter, and to have invited him to submit argument to her. Had she done so counsel would no doubt have been in a position to address her concerns and the necessity for this appeal may well have been obviated.

Secondly, the remark made by the learned Judge concerning the alleged arrest of the defendants was not based on any averment made in either the pleadings or the evidence adduced before her at the hearing or in the course of argument by Mr Pretorius. It would appear that she must have gleaned this information from some outside source. It hardly needs stating that a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in the pleadings or raised in court constitutes a serious misdirection.”…,.

I respectfully agree with the views expressed in the authorities referred to above.

The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties' issues. It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties.

The judgment of the court a quo unfortunately fell short of these guiding principles. In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law.

They seem to have been motivated by equity and sentiments of justice rather than the law and the facts, as demonstrated by the court a quo's narration of the exploits of the legendry “judge jackal” in setting free a man who was about to be eaten by a leopard he had rescued from a trap.

Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA said:

“The appellant argues, in the light of all this, that the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument…,.

The misdirection on the part of the court a quo is left in no doubt. It is my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

The determination by the court a quo, of matters not placed before it, goes against a litigant's right to be heard and this view is supported in the fourth edition of Judicial Review of Administrative Action by J. M. EVANS…, where it was highlighted that the principle that “no man is to be judged unheard” is an age-old view adopted from the ancient Greeks. This principle has been adopted in our system under the audi alteram partem rule.

Therefore, the fact that the respondents are not taking issue with the court's mero motu decision is neither here nor there. This irregularity militates against the validity of parts of the judgment of the court a quo.

The “grace period” of thirty days granted to the first respondent by the court a quo has no founding at law and cannot be legally justified. The initial thirty days awarded by BARTLETT J were in terms of the Contractual Penalties Act. The purchaser, having already been granted this thirty-day period in terms of the law, cannot be granted a further thirty-day period not provided for in terms of the law to the prejudice of the seller on no legal basis.

Judicial discretion should at all times remain guided by the dictates of the law.

A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.

It developed its argument around that preliminary issue along the following lines. It said the urgent chamber application for stay of execution involved an assessment of the applicants' prospects of success on appeal. It stated that the Supreme Court, and not this court, has the jurisdiction to make the assessment. It, on that basis, insisted that the applicants' application was in the wrong forum. It submitted that the urgent chamber application should have been filed with the Supreme Court and not this court.

The applicants stated to the contrary in their response to the first respondent's above-mentioned in limine matter. They stated that the court does have jurisdiction to hear and determine their application. They, in this regard, made reference to section 171(1) of the Constitution of Zimbabwe. They said the section confers jurisdiction on the court to entertain the application. The section reads:

“171 JURISDICTION OF HIGH COURT

(1) The High Court -

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)…,.

(c)…,.

(d)…,.”…,.

The applicants submitted that the application which was before the court was a civil matter. They insisted that the application was, therefore, properly before the court.

A reading of section 171(1) of the Constitution shows, in a clear and unambiguous manner, that the court has the necessary jurisdiction to hear as well as determine the application.

The first respondent's assertions on the issue of the court lacking the jurisdiction to hear the application was, to a large extent, misplaced. That is so because, while it is accepted that an application for stay of execution pending the hearing of an appeal does involve an assessment of the applicant's prospects of success, the court's ability to make the assessment is not excluded. At any rate, the assessment is not the only factor which determines the propriety or otherwise of the application. Other matters come into play. Amongst such matters are the interests of justice as between the parties.

An application for stay of execution does, by its nature, fall into the area of equity reliefs. Where, therefore, equity demands that it be granted in the interests of justice, the court hearing the application is, as a general principle, enjoined to consider, and, where appropriate, grant it.

The applicants referred the court to section 176 of the Constitution of Zimbabwe. They argued, and correctly so, that the section confers power on the court to regulate its processes as well as to develop the common law or the customary law taking into account the interests of justice. The position which the applicants stated is in sync with the remarks of GUBBAY CJ who, in Mupini v Makoni 1993 (1) ZLR 80 (S) said:

“Execution of a judgment is a process of the court and the court has an inherent power to control its own processes and procedures, subject to such rules as are in force. In the exercise of a wide discretion, the court may set aside or suspend a writ of execution or cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay of execution to satisfy the court that special circumstances exist. Such special circumstance can be readily found where the judgment is for ejectment or the transfer of property, because the carrying into operation of the judgment could make restitution of the original position difficult.”

The parties are, in this regard, referred to the following case authorities where the cited principle was also enunciated: Cohen v Cohen 1979 (1) ZLR 184 (G); Santam Ins Co Ltd v Paget 1981 (1) ZLR 132 (S); and Chibanda v King 1983 (1) ZLR 116 (H) wherein DUMBUTSHENA AJP stated that the applicant:

“must satisfy the court that he may suffer irremediable harm or prejudice if execution is granted.”

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(c) BP1,800,000 for loss of income.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quo HH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that 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 Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the 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 fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view 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 an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous Tapfuma SC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & Packaging SC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous Tapfuma SC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(c) Has the principle of currency nominalism any application to the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek 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 Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as 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 became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S).

Points 3 and 4 of the respondent's opposition cited above are interwoven with point 2 cited immediately above so I shall deal with them pari passu…,. First, let me deal with points one and two of that opposition quoted above. They allude to the issue of res judicata and ousting of this court's jurisdiction by virtue of section 89(6) of the Labour Act.

As regards the issue of res judicata, I have not been persuaded that it is applicable in the instant case.

In order to successfully ground such a defence, the litigant raising it must show that the dispute has been conclusively settled on the merits by a court of competent jurisdiction and that the two actions are between the same parties, concerning the same subject matter founded on the same cause of complaint. See Gwaze v National Railways of Zimbabwe 2002 (1) ZLR 679.

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 is the gravamen of the present application.

That issue only arose following the introduction of the multi-currency regime in January/February 2009 – well after the Labour Court had already handed down its judgment which was silent on the currency to be used thereby providing the basis of discretion being asserted by the applicants. The present application seeks not to reverse, amend or modify the order that the applicants be paid five years salary as damages for the unlawful dismissal, but simply seeks a declaratory order that in view of the introduction of the multicurrency 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.

The Labour Court, not being endowed with inherent jurisdiction to make such a declaration, it cannot be said that the dispute was dealt with on the merits let alone conclusively settled.

Regarding the issue that this court's jurisdiction is ousted by section 89(6) of the Labour Act [Chapter 28:01], I am unable to subscribe to this view. The subsection cited provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)”.

Subsection (1) has six paragraphs listing the functions to be exercised by that court to the exclusion of all other courts. Those functions do not include issuing declaratory orders. This meant that the Labour Court has no inherent jurisdiction to issue declaratory orders, and, in the event, the jurisdiction of the High Court remains intact.

In Sibanda & Anor v Chinemute NO & Anor HH131-04, MAKARAU JP…, put it aptly thus:

“Thus, the power to issue a declaratory order is not available in all courts that apply common law. It is specific to this court…,.

It is common cause that the Labour Court has not been specifically empowered to issue declaratory orders as this court has been. It cannot create such a relief or the procedure for granting such relief as it is not a court of inherent jurisdiction.”

I am in respectful agreement with this view.

I now turn to the other points raised in opposition cited supra.

Regarding the point raised, that the applicants are inviting this court to do what Parliament should, viz to make law by repealing the common law principle of currency nominalism, it is settled that it is not impermissible of 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 are not asking this court to declare that the principle of currency nominalism no longer has any space in our common law generally. They are simply asking the court to pronounce that following the introduction of the multi currency regime, in January/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 Parliament has remained in a near catatonic state in addressing this occurrence, this court should declare that in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.

This court is enjoined to take judicial notice of the reality that immediately before and after the country adopted the multi-currency regime, in about February 2009, the Zimbabwe dollar was so valueless that it had ceased to be the medium of exchange in all financial transactions. To therefore have an employer tender damages in lieu of reinstatement in the form of Zimbabwe dollars in February 2009, as what the respondent did to the applicants in casu, is tantamount to giving someone an ordinary stone and expect him/her to transact using that stone as a medium of exchange. It does not make any sense in any sane society.

Should Zimbabwe continue being immutable to change on this score?

On principles of equity, this court should tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.

The words of GUBBAY ACJ…, in the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S)…, regarding judicial law-making, bear useful repetition for clarity:

“Even if confirmation of the appellant's liability to the respondent should meet with disapproval as being an encroachment upon the discretion reposed in the law-giver to change the law, we would strongly defend the Judiciary's right to do so. Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But, at the same time, if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs, and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions.”

After quoting the celebrated American jurist, OLIVER WENDELL HOLMES opening page of his famous work, The Common Law which reads:

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a Book of Mathematics.”

The learned ACTING CHIEF JUSTICE, at page 154 paragraphs A-E of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S), went on to say:

“Today, the expectations amongst people all over the world, and particularly in developing countries, are rising, and the judicial process has a vital role to play in moulding and developing the process of social change. The judiciary can, and must, operate the law so as to fulfil the necessary role of effecting such development. It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the Judiciary than by the Legislature. This is because judges have a certain amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that judges do not merely discover the law - but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process. The opportunity to play a meaningful and constructive role in developing and moulding the law to make it accord with the interests of the country may present itself where a judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such a course. If judges hold to their precedents too closely they may well sacrifice the fundamental principles of justice and fairness for which they stand.”

The learned ACTING CHIEF JUSTICE then quoted a famous passage by LORD ATKIN, referring to judicial precedents:

“When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course is for the judge to pass through them undeterred.”

The quotations cited above are not only attractive and persuasive but fit the instant scenario of the application before me like a fiddle.

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, not like 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 introduction of multiple currency, in February 2009, it is beyond cavil that the Zimbabwe dollar died a natural death by disuse. To then give someone such currency, which no one nationwide 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 what the respondents did in casu is not only immoral but an infringement of a human right.

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.

I am prepared in the instant case not to let the ghosts of the past stand in the path of justice clanking their medieval chains but to pass through them undeterred in the interests of justice and fairness.

In any event, the assertion that by granting the order sought would be usurping the role of the Legislature has no legal leg to stand on for the issuing of orders in foreign currency has been decisively dealt with before locally, regionally, and internationally.

In Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) GUBBAY JA…, was of the view that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative approaches taken in England and South Africa, making orders in foreign currency, had to be adopted in order to bring Zimbabwe into line with other foreign legal systems. In that case, the court relied on the House of Lords decision in Owners of the MV Eleftherotria v Owners of the MV Despina R (1971) 1 ALL ER 421 (HL).

In South Africa, a similar approach was followed in the case of Elgin Brown & Hammer v Dampskibsselskabet Torm Limited 1988 (4) SA 671 (NPD).

After reviewing the three authorities cited immediately above, MAKARAU JP…, awarded delictual damages in foreign currency to a party who had purchased a house in local currency against a seller who had failed to effect transfer as a result of a prior sale to another party in Kwindima Fabiola v Mvudura Louis HH25-09. At page 5 of the cyclostyled judgment the learned judge reasoned as follows:

“It appears to me that the issue I have to determine is whether to extend the approach that has been taken in the Makwindi case and be innovative enough to suggest that where a loss has been suffered and can be calculated in both the local and in a foreign currency, the court has a discretion to award judgment in that currency that will redress the injury suffered and adequately compensate the plaintiff for the loss. It would then follow that where that currency is the foreign currency as opposed to the local currency, then judgement should be in the foreign currency, for to award damages in the local currency, where the local currency has been rendered valueless by inflation might be to deny a plaintiff the redress that he or she seeks.”

Adopting the approach taken in Kwindima Fabiola v Mvudura Louis HH25-09, I am persuaded that in the instant case, in order to adequately compensate the applicants, the currency which the respondent must pay them as damages for unlawful dismissal in lieu of reinstatement should be in foreign currency. I say so because in a multi-currency regime where the local currency has become moribund, to award damages to an unlawfully dismissed employee who has toiled for the employer for between 25 and 46 years in such local currency is not only clinging to a positivist jurisprudential approach but iniquitous and offends against all known tenets of justice in a civilised and democratic society.

Such an award should not be a brutum fulmen but must be meaningful and beneficial to the beneficiary.

Even on an international plane, in terms of Article 10 of the I.L.O. Convention 158 Termination of Employment Convention 1982, adequate compensation should be paid for unjustified loss of employment.

Certainly payment in Zimbabwe dollars in this era will not amount to adequate compensation.

The last point to deal with relates to points 3 and 4 of the respondent's opposition as encapsulated in the contention that the applicants are inviting this court to “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of reinstatement as held inter alia, in the case of Redstar Wholesalers v Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi SC09-07.

In the instant case, the applicants, in applying for payment of their damages to be made in US dollars want the rate applicable to be “the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.” In support of their contention in this regard, the applicants argued, in their heads of argument, in this vein:

“As to a potential objection of what would be the appropriate salary in foreign currency to use, this is not an insurmountable obstacle. Reference may be had to the salary scales of the first month that the respondent first started fully and wholly paying its employees remuneration in foreign currency. Alternatively, is to look at the first National Employment Council (NEC) salaries in foreign currency and applying those. After all, these are exactly the salaries that the applicants would have been earning if they had been reinstated rather (than) being paid damages in lieu of reinstatement. What is called for here is not mathematical precision computation but substantive justice and fairness that, in the words of OMERJEE J in Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation, places the successful party 'as nearly as possible in the same position as he would have occupied if the contract had been performed…,.'”

Prima facie, the argument is titillating.

The citation of Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation is HC3074/04. Therein, OMERJEE J made the pronouncement when holding that regarding judgments sounding in foreign currency “it is the plaintiff's prerogative to claim in a currency that will most truly express his loss and accordingly most fully and exactly compensate him for that loss. However, in order to succeed, a claimant is required to lay a foundation that supports him claim.”

In that case, the court found that the plaintiff had laid an adequate foundation establishing its entitlement to damages in United States dollars because the defendant was selling the disputed shares (which it claimed were valued in Zimbabwe dollars) in United States dollars including their final disposal.

I am constrained to shy away from the applicants' contention in this connection for two reasons;

(i) Firstly, the pronouncements by OMERJEE J, in Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation HC3074/04, were confined to the choice of currency by the claimant which I have already disposed of supra in the applicants' favour and not to the rate of salary to invoke when calculating damages in lieu of reinstatement.

(ii) Secondly, and more importantly, based on the doctrine of stare decisis, this court is bound by the plethora of Supreme Court decisions to the effect that in calculating damages for unlawful dismissal in lieu of reinstatement, the rate of salary to be used is the one pertaining at the date of the reinstatement order - certainly not the one obtaining at a later date.

Since I have already held that the applicants must be paid their damages not in Zimbabwe dollars but in foreign currency of their choice (and they chose the United States dollars), the rate of salary to be used in the calculation of the damages should be the one obtaining as at 5 July 2007 (the date of the reinstatement order) but being the official rate of exchange of the Zimbabwe dollar – United States dollar equivalent.

I also find that the respondent, in the face of the stark economic reality obtaining at the time of its tender of the damages, was quite unreasonable in refusing to yield to reason. It should accordingly pay the applicants costs of suit. In any event, costs always follow the result.

In the event, there is need to amend the applicants' amended draft order to read as follows:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States dollars using the official rate of exchange of the Zimbabwe dollar-United States dollar equivalent obtaining on 5 July 2007.

2. That the respondent pay the costs of suit.”