Anatos Mpofu v Commissioner of Police and Police Services Commission

The applicant, a member of the Zimbabwe Republic Police, was charged with and convicted of assault in July 1999. He was fined $400 or two months imprisonment in default, and sentenced to one month imprisonment suspended for five years. Following his conviction, the first respondent (Commissioner of Police) summarily dismissed him under section 48(a) of the Police Act. The applicant successfully appealed against both conviction and sentence, and requested reinstatement. His request was denied. He appealed to the second respondent (Police Services Commission), which dismissed his appeal as out of time. The applicant sought review in the High Court, which dismissed his application. He appealed to the Supreme Court, which set aside the dismissal as unlawful and remitted the matter to the High Court to determine whether the applicant should be reinstated or paid damages in lieu of reinstatement. More than 10 years had elapsed since the dismissal.

• Whether the applicant should be reinstated to employment or paid damages in lieu of reinstatement following an unlawful dismissal
• The appropriate quantum of damages in lieu of reinstatement
• Whether damages should be calculated based on Zimbabwe dollar era salaries converted to US dollars
• Whether a deduction should be made for failure to mitigate loss by seeking alternative employment
• Whether the applicant should be promoted for purposes of calculating pension benefits

1. First respondent ordered to pay applicant damages in lieu of reinstatement of US$58,131.00 being arrear salaries, bonuses, accommodation, leave days and medical services. 2. First respondent to pay applicant a lump sum pension of US$6,101.57 and monthly pension of US$97.00 until death. 3. Both respondents to pay costs of suit.

1. Where an employment relationship has broken down completely with loss of mutual trust, confidence and integrity, reinstatement is inappropriate and damages in lieu of reinstatement should be awarded. 2. Courts will not compel continued employment against the will of an employer where animosity and ill-will exist, particularly in the context of police employment which requires close working relationships and trust. 3. An unlawfully dismissed employee must mitigate his loss by seeking alternative employment, and where no evidence is adduced of such efforts, a deduction will be made from damages representing remuneration that could reasonably have been earned from substituted employment. 4. In calculating damages for unlawful dismissal, realistic salary rates based on current comparable positions should be used rather than inflated historical conversion rates. 5. Issues of promotion are matters for the employer to decide and not for the court to determine when calculating damages or pension entitlements.

The court observed that quantification of damages is not an easy task, particularly where the bulk of the period of unlawful unemployment falls within the Zimbabwe dollar era. The court noted its agreement with the respondent's preference for damages over reinstatement, describing it as 'the only choice anyway' in the circumstances. The court also made observations about the unrealistic nature of the Reserve Bank of Zimbabwe's calculations, noting there was 'no way a constable would have been paid over US$600 per month' and that realistic salaries would be 'something akin to the current position' of US$150-200 per month.

This case is significant in Zimbabwean labour law as it addresses the remedies available for unlawful dismissal in the context of police employment, specifically dealing with the choice between reinstatement and damages. It establishes principles for calculating damages where the employment relationship has irretrievably broken down, particularly in circumstances where most of the relevant period falls within the Zimbabwe dollar era requiring currency conversion. The case reinforces the principle that courts will not order reinstatement where there is a complete breakdown of trust and confidence between employer and employee, particularly in the context of disciplined services like the police force. It also confirms the employee's duty to mitigate loss by seeking alternative employment, and that deductions will be made where this duty is not discharged.