High Court of Zimbabwe, Gift Bob David Samanyau & 38 Ors v. Fleximail (Private) Limited, 4 November 2010 and 8 June 2011, HC 108-11

Constitution of Zimbabwe

Article 111(b): Effects of International Conventions

Except as otherwise provided by this Constitution or by or under an Act of Parliament, any convention, treaty or agreement acceded to, concluded or executed by or under the authority of the President with one or more foreign states or governments or international organizations: (…) (b) shall not form part of the law of Zimbabwe unless it has been incorporated into the law by or under an Act of Parliament.

Role of International Law:
Reference to international law to strengthen a decision based on domestic law
Type of instruments used:

Unratified treaty;1 Foreign case law2

Unlawful dismissal/ Award of compensation/ Consideration of currency in which compensation to be paid/ Reference to international law to strengthen a decision based on domestic law

The claimants were 39 employees who, in 2005, were charged with misconduct and, following a disciplinary process, dismissed by Fleximail (Private) Limited (“Fleximail”).

In previous proceedings, the Labour Court found that the claimants had been unlawfully dismissed and ordered that they be reinstated or, alternatively, paid damages in lieu of reinstatement.

Fleximail opted to pay damages to the claimants and attempted to do so, in February 2009, by cheque, in Zimbabwe dollars.  The claimants rejected the cheque on the basis that, at that time, the currency had become “moribund”. The claimants therefore requested that the High Court make an order that Fleximail make the damages payment in United States Dollars.

The Court reasoned as follows:

“(…) 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 civilized 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 ILO Convention No. 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.”3

Thus, the Court, strengthening its reasoning by reference to ILO Convention No. 158, ruled that, in order to be adequately compensated, the claimants were entitled to be paid the award of compensation, not in Zimbabwe dollars, but in foreign currency of their choice (noting that the claimants chose United States dollars).

1 ILO Termination of Employment Convention, 1982 (No.158).

2 South Africa.

3 Page 8 of the decision.

Full text of the decision