CHIDYAUSIKU
CJ:
At
the conclusion of submissions by counsel, the parties in this case
agreed that this matter should have been determined by the Labour
Court and not the High Court.
It
was also common cause that a determination by the Labour Court was
necessary before the Supreme Court could be seized with this matter.
Consequently, it was agreed between the parties that the matter be
referred to the Labour Court for determination and that, in the event
of either party not being satisfied with the determination of the
Labour Court, the aggrieved party appeals to the Supreme Court. The
Court agreed with the common stance of the parties.
The
Court directed the parties to submit a draft order by consent for
approval by the Court. The parties were not able to agree on the
details of the order by consent. They addressed the following letter
to the Registrar of this Court:
“FLEXIMAIL
(PVT) LTD v GIFT BOB SAMANYAU AND 38 OTHERS: CASE NO. SC-135/11
We
respectfully request that you place this memorandum before His
Lordship The Chief Justice. We refer to the above Supreme Court
appeal in respect of the above matter which was heard on the 11th
of September 2013. Pursuant to the Court's direction that the
parties draft a consent order and revert to the Court by the 13th
of September, we advise that there are areas of agreement and areas
of disagreement.
Areas
of agreement
The
parties agree that the matter be referred to the Labour Court for
quantification.
Areas
of disagreement
The
parties disagree on the following three issues:
1.
Whether or not the appeal was allowed.
2.
Whether or not the cross-appeal was allowed.
3.
Whether or not the Labour Court was directed to quantify the damages
in United States dollars or whether this issue remains open.
It
is the appellant's view that the appeal was allowed as the Court
indicated that the judgment of the High Court was set aside. However,
the question of whether the respondents are entitled to damages in
United States dollars remained to be decided by the Labour Court
during the quantification proceedings. Accordingly, the cross appeal
cannot have been granted.
We
respectfully request the Court's direction as to how to proceed.”
The
Court has considered the submissions by counsel and the above letter
addressed to the Registrar of this Court seeking directions. The
Court has come to the following conclusion.
1.
The judgment of the High Court in this matter is hereby set aside for
lack of jurisdiction. To that extent the appeal succeeds. The matter
should have been determined by the Labour Court.
2.
There being no valid appeal to this Court from a court of competent
jurisdiction, the cross-appeal falls away. The matter is hereby
remitted to the Labour Court for determination.
3.
For the guidance of the Labour Court, the Labour Court is directed to
determine the following issues–
(a)
What is the effect of the change in currency effected in February
2009 on debts occurring before the effective date?
(b)
Does the Labour Court have the power to order payment in the
operational currency (the United States dollar) of debts incurred
under the Zimbabwe dollar currency which, though not demonetised, is
no longer in use?
(c)
Has the principle of currency nominalism any application in the
circumstances of this case?
(d)
The method of calculating the quantum of the debt in current
realisable currency if the conclusion of the above issues is in
favour of payment in United States dollars.
MALABA
DCJ: I agree
ZIYAMBI
JA: I agree
GARWE
JA: I agree
PATEL
JA: I agree
Chinawa
Law Chambers, appellant's legal practitioners
Munyaradzi,
Gwisai & Partners, respondents' legal practitioners
