Balm of Hope Surgery v Rosemary Moffat

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/381/25
HELD AT HARARE 06 OCTOBER 2025
CASE NO. LC/H/490/25
AND 14 OCTOBER 2025
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 06 OCTOBER 2025

AND 14 OCTOBER 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/381/25 CASE NO. LC/H/490/25

BALM OF HOPE SURGERY	APPELLANT AND

ROSEMARY MOFFAT	RESPONDENT

Before Honorable Mr. Justice L.M. Murasi

For the Appellant	Ms. N Mashonganyika

For the Respondent	Mr. N Musekiwa

MURAS J.,

This is an appeal against the entire decision of the arbitrator handed down on 15 May 2025 per the Honorable Forward Mugabe.

FACTUAL BACKGROUND

The appellant initially employed the respondent as a general hand when a vacancy for a nurse aid was advertised. She applied for the post and was successful. She commenced as a Nurse Aid in December 2022, but was dismissed on 15 March 2023 on the grounds that she had fallen short of the standards set by the organization to be a permanent worker. The appellant claimed that the respondent was on probation. The matter was taken to the arbitrator. A signed Deed of Settlement was issued before the arbitrator, indicating that the appellant would pay the respondent an amount of US$6 709.25 and that the respondent would be reinstated to her position. The appellant claimed that the Deed of Settlement was signed without its knowledge.

The appellant’s grounds of appeal are as follows:

The Tribunal misdirected itself in law by failing to give proper legal effect to the probationary nature of the Respondents’ engagement. Section 12(5) of the Labour Act [Chapter 28:01] permits an employer to engage an employee on a probationary basis, whether orally or in writing. By treating the Claimant as a permanent employee ab initio, the Tribunal erred in law, disregarding the binding legal character of the probationary agreement.

The Tribunal misdirected itself in law by upholding Respondent`s claim for wages and terminal benefits including outstanding wages, underpayments, accrued leave pay and gratuity, despite the absence of credible evidence substantiating these claims. The Tribunal failed to properly evaluate the evidentiary burden placed upon the Respondents to demonstrate entitlement to the alleged payments, as the alleged dues of the Appellant were only left to speculation.

By accepting the Respondent`s claims without sufficient proof, the Tribunal disregarded established principles of evidence and erred in law by making findings unsupported by the record. This misdirection has resulted in a flawed determination that improperly imposes liabilities on the Appellant, contrary to the provisions of the governing employment contract and applicable statutory requirement.

Preliminary Issue

Ms. Mashonganyika raised a preliminary ISSUE to effect that the Respondent had not heads of argument as prescribed in the Rules and that meant that the Respondent was barred. In response, Mr. Musekiwa stated that the client was out of Harare and was not easily reachable making the drafting of the heads of argument difficult.

In an Ex Tempore decision, the Court stated that the reasons profferred by the Respondents representative was not convincing having regard to the fact that heads of argument are drafted by the legal practitioner or representative on his/her understanding of law based on the Notice of Response that would have been filed. The Court also noted that in this day and age when communication had been made simple, it would not be difficult to trace the Respondent. It was the Court’s view that it would not meet the ends of justice to visit the sins of the representative on the Respondent. It therefore enquired of Mr. Musekiwa whether he was in a position to make oral

submissions and he replied in the positive. The Court thereafter stated that, in the interests of justice, the bar operating against the Respondent was uplifted.

Merits

Appellant’s submissions

Ms. Mashonganyika submitted that the Deed of Settlement relied on by the respondent was concluded without the appellant’s knowledge. It was solely signed by the legal practitioner who admits that he had no instruction to enter into the settlement. Asked by the Court whether there was a Deed of Settlement supplied to the arbitrator, she replied in the affirmative. She further raised the issue of probation, stating that the respondent was on probation at the time of her dismissal, hence she was not entitled to wages and benefits. She stated that the arbitrator made a wrong determination by regarding the respondent as a permanent employee entitled to full notice and benefits.

Respondent’s submissions

Mr. Musekiwa submitted that the Deed of Settlement was admissible because it was drafted by the appellant. He stated that the appellant’s legal representative, who was handling the matter at that time, conceded that he had been mandated by his client to draft the Deed of Settlement with all the figures stipulated in it.

ANALYSIS

The key factor to consider when dealing with appeals is whether the determination made by the lower Court or tribunal can be regarded as so unreasonable and outrageous that no other tribunal, confronted with the same facts, would have reached the same conclusion. The principle has been followed for decades now, as clearly outlined in Nickolas Van Hoogstraten v Tapiwa Nelomwe SC 4-20 p 7, in which the court quoted the case of Hama v National Railway of Zimbabwe 1996 (1) ZLR 664 at 670 C-D, where the court pronounced:

“The general rule of the law, as regards irrationally, is that an appellant court will not interfere with the decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that

no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion”

This principle was also articulated in the case of ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S), wherein the Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower Court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the Court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it or that the decision was clearly wrong.”

In consideration of the principles established by the above authorities, the question that this Court must resolve is whether the decision of the arbitrator can be deemed so unreasonable as to justify interference by this court. I will now dig into the grounds of appeal submitted by the appellant in this matter.

The Court noted that the appeal emanated from the Deed of Settlement that was issued before the arbitrator. The appellant is challenging the competence of the Deed of Settlement before the wrong forum. The first procedure before approaching the Labour Court was for the appellant to approach the arbitrator for rescission of the arbitral award. Ivan Israelstam, There Are Ways Around an Arbitration Award, Labour Guide, (Oct.8, 2025, 156 PM), stated;

“Within 14 days of becoming aware of the arbitral award, a party can apply to the same arbitrator to rescind or cancel the award. Upon showing that the award was erroneously sought or made in the absence of any party affected by it, contained an ambiguity or an obvious error or omission or was granted as a result of a mistake common to the parties, the arbitrator can rescind the arbitral award”.1

In casu, when the appellant became aware of the arbitral award, it did nothing to try to rescind the arbitral award. Had the arbitrator failed to rescind the award, the appellant would then have approached the Labour Court on review to challenge the gross irregularities in the conduct of the arbitration proceedings.

Whether or not the Deed of Settlement is valid

Ms. Mashonganyika made the submission that the Deed of Settlement was concluded without the knowledge of the appellant. She claimed that the legal practitioner who was handling the matter

1   https://labourguide.co.za/misconduct/there-are-ways-around-an-arbitration-award

admitted that he had no instruction to enter into the settlement. The appellant argued that an attorney cannot bind a client by a settlement unless the client has authorized it.

I should hasten to point out that the issue of the Deed of Settlement not having been authored at Appellant’s instance is not part of the grounds of appeal. It is trite that a court is guided by the pleadings filed by the parties in making a determination. This is not what Appellant has stated in the papers filed of record.

In response, Mr. Musekiwa submitted that the Deed of Settlement was drafted by the appellant. He made the averment that he was in a meeting when he was called out to sign the Deed of Settlement by the appellant’s legal representative. He submitted that the appellant’s legal representative conceded that he had received the instruction from his client to enter into a settlement. It is, however, surprising that the appellant did not file any supporting affidavit to provide evidence to the court to strengthen their case. There is no affidavit from the appellant’s previous legal representative supporting the claim that he was not mandated to sign the Deed of Settlement by his client. This puts the Court in a difficult position to decide in favour of the appellant without any evidence presented before the Court. The arbitrator’s conclusion in this regard is sound because he issued an award based on the Deed of Settlement presented to him by the parties.

Whether or not the respondent was on probation

Ms. Mashonganyika raised the issue of probation. She stated that the arbitrator effectively elevated the probatory contract into a permanent contract without adhering to the required procedure. The appellant averred that the character of the respondent’s contact remained probatory unless and until the employer took positive steps to confirm it as permanent or to discharge the employee. Contrary, the respondent regarded herself as a permanent employee because there was no written communication regarding probation. Section 12(2) of the Labour Act [Chapter 28:01] states:

“(2) An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars—

(a) …

(b) …

(c) the terms of probation, if any;”

The section makes it clear that probation has to be put in writing. The respondent never signed any probation contract from the day of engagement until the day of termination. Asked by the Court

whether there was any written communication to the respondent about the probation, counsel for the appellant replied in the negative. In Pillay v Krishna 1946 AD 946 at 952, DAVIES AJA had this to say:

“But there is a third rule which Voet states; ‘He who asserts, proves and not he who denies since denial of a fact cannot naturally be proved provided it is a fact that is denied and the denial is absolute.’ The onus is on the person who alleges something and not on whose opponent who merely denies.”

Further in Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, it was held as follows:

“It follows therefore that where a party makes bold assertions not backed by evidence and the same are denied by the party against whom they are made, such bold allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value.”

In the present case, Appellant has not submitted any evidence by way of affidavit disowning the Deed of Settlement in question. The said legal practitioner’s affidavit explain the position is conspicuous by its absence. What the Court is left with are submissions from the bar by Ms. Mashonganyika. It is trite that submissions do not amount to evidence. The arbitrator made his determination based on the Deed of Settlement submitted by the parties. Can it be said that the arbitrator misdirected himself in the circumstances? Certainly not.

DISPOSITION

In consideration of the above, l conclude that the appeal is without merit, as the findings of the arbitrator cannot be deemed so unreasonable as to justify interference by this Court. His conclusions were derived from the evidence and records presented to her in light of the fact that they premised on the Deed of Settlement provided by the parties to the dispute. Consequently, the present appeal should be dismissed.

In the result, the Court makes the following order:

The appeal is hereby dismissed.

The appellant is to meet the respondents’ costs.

Chizengeya Maeresera & Partners-	Appellant’s Legal Practitioners

Zimbabwe Federation of Trade Unions-    Respondent’s Legal Practitioners