Dalny Mine v National Mine Workers Union of Zimbabwe (Members)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/44/24
HARARE
CASE NO. LC/H/298/22
8 FEBRUARY, 2024
---------


Before the Honourable Chivizhe J

For Appellant: Mr. G. Sithole (Legal Practitioners) For Respondent: Mr. K. Masarire (Legal Practitioners)

CHIVIZHE, J:

This is an appeal against the determination, handed down in terms of Section 63 (3a) of the Labour Act [Cap 28:01] (hereafter referred to as the Act) by the Designated Agent of the National Employment Council for the Mining Industry, Mr V. Tasiyana. The determination was handed down on 14 March 2022.

BACKGROUND FACTS

The Respondents (who were the claimants in the proceedings before the Designated Agent) referred a claim of non-payment of salaries from 2013 up to the date of referral in July 2017. The Respondents were employees of the Appellant engaged in various capacities. Following operational cost challenges, the Appellant on 29th of August, 2013 placed all its employees on a unilateral unpaid leave. The notification came through a memorandum from Appellant dated 30 August 2013 which reads as follows;

“All workers are thus advised that with immediate effect Dalny Mine has been placed on care and maintenance and all immediate effect, on unpaid leave”

The Respondents referred their claim to the National Employment Council in July 2017. The matter was heard before the Designated Agent Tasiyana in April 2021 some four years later. The Respondents were claiming a total of RTGS$ 134,813,601 (one hundred and thirty- four million, eight hundred and thirteen thousand and six hundred one dollars). The claim was opposed by the Appellant.

The Appellant raised four objections in limine. Firstly, that there had been an irregular citation. The Appellant submitted that it had been cited as “Dalny Mine” but the Respondents had failed to explain who “Dalny Mine” is. This was an irregularity which could not be correct. The proceedings were therefore void in that they had been brought against a non-existent party. The Appellant further submitted that Dalny Mine in any event was not a legal persona at law and was therefore not capable of suing or being sued in its own right. Respondent relied on the authority in C.T. Bolts (Private) Limited v Workers Committee SC 16/12; JDM Agro Consult & Marketing (Private) Limited v Editor of the Herald & Anor 2007 (2) ZLR 71 (H), Amos Makonda & 32 Others v Freda Rebecca Mine HH 400/18; Ganya Safaris (Private) Limited v Van Wyk 1996 (2) ZLR 246 (H).

The second ground of objection was that the statement of claim by the Respondent was inadequate. The Respondent in their claim had submitted that there were employees of the Appellant. To support the claim, a list of the claimants with a handwritten heading “Dalny Mine-Falcon Gold Mine v Workers Union of Zimbabwe Members (NMWUZ)” had been filed. The Respondents however had not included proof that there were employees of the Respondent. They had not attached contracts of employments or any other documentation to substantiate their claims of employment. The Appellant referred to Isoquant Investment (Private) Limited t/a Zimoco v Memory Darikwa CCZ 6/20 as supporting this position. On page 11 of that judgement the apex court had reiterated that employment relationship are generally based on contracts. It was Appellant position that in the absence of such contracts and supporting documents it was unable to respond to the claims as filed.

The Appellant further submitted that the Respondents had the onus to prove their claims. The principle of law was clear that a party who alleges something has to prove it. The Appellant relied on Brooke v Davidson 1988 (1) ZLR 365; Astra Industries Limited v Peter Chamburuka SC 27/12; Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Private)

Limited SC 24/18. The Appellant further contended that given that no contracts had been produced the Respondent also failed to tender evidence, by way of affidavits from each of them showing the name, particulars of employment industry grade, date of engagement, duration of contract of employment and why each individual still regarded himself or herself as an employee. The Appellant was relying on this point, on Retrenched Employees of National Breweries Limited v National Breweries & Ministry of Public Service, Labour and Social Welfare SC 121/02 where the Supreme Court had found it improper for the Chairman of the Workers Committee to bring action on the employees’ behalf without a proper mandate from each of the employees concerned. The Appellant position was the same situation prevailed. The Respondent having failed to prove they were employees, the Appellant was unable to respond to their claim and the application had to fail. Reference was also made to the High Court decision in Bramwell Bushu v GMB & 2 Others HH 326/17.

The third ground of objection taken was that Respondents claims were prescribed and the tribunal had no jurisdiction to deal with the claims made. The Appellant was relying on Section 94 (1) of the Labour Act [Cap 28:01]. Section 94 of the Act was said to also apply to the Designated Agent by reason of the provisions of Section 63 (3a) of the Labour Act [Cap 28:01].

The Appellant contended that the claim had long prescribed as the Respondent referred their claims in 2017, a period of four years from the date when they were sent on forced leave. They ought to have filed their claims within two (2) years from January 2013. Any claims filed after January 2015 were therefore invalid. The Appellant also disputed the Respondents claim that they were on permanent employment. The Appellant also contested that the claims fell under the exception in Section 94 (2) of the Act on the basis that the conduct complained of was a once off event. The conduct could not be regarded as a ‘continuing’ unfair labour practice. Appellant referred to authorities including Gumbo v Sunganayi Motorways (Private) Limited 1988 (2) ZLR 83 (HC) and Peebles v Dairiboard Zimbabwe (Private) Limited 1999 (1) ZLR 41 (HC). The Appellant prayer was for dismissal of the claims with costs on the basis of the preliminary points.

The fourth and last objection was that there was no valid cause of action for the Respondent to respond to. The Appellant submitted that although the Respondent were claiming unpaid salaries the Respondent had also attached to their submissions a memo indicating they had been placed on unpaid leave. They were therefore not entitled to claim

salaries for the period they did not provide service to Respondent. On that basis there was no valid cause of action. The Appellant was claiming lastly legal costs on a punitive scale as it had been made to incur unnecessary legal costs in defending the claims.

The Designated Agent in his award addressed all the technical points raised in objection. He found in respect of the issue of incorrect citation that the Appellant had been properly cited. He found that the Appellant had failed to furnish the tribunal with a certificate of incorporation in order to prove that this was a wrong citation. He also found that in terms of Section 125 of the Labour Act [Cap 28:01] the employer is generally required to keep all records. It was his further finding that the Appellant had failed to provide a proper name for ‘Dalny Mine’ in the oral hearing. The onus lay on it to provide the proper name. In arriving at this conclusion he placed reliance on Section 12 (2) of the Act which requires an employer upon engagement to provide the employee with necessary details such as the name and address of the employer, the period of engagement, the terms of particular probation e.t.c.. He further found that it went against the principle of social justice as enshrined in Section 2A (1) of the Labour Act [Cap 28:01] for the Appellant to now seek to abrogate its name because a claim had been brought against it whereas the name ‘Dalny Mine’ had been constantly referred to during the course of relationship between parties such as through the contract of employment, the payslips, memorandums, notices. He also referred to the Sheriff of the High Court v Antony William Macicentosin and 2 Others HH 330/13 where the High Court had held that a party or person carrying on business under a trade name may sue or be sued in that name. The Designated agent also made reference to the well celebrated decision in Dalny Mine v Banda 1999 (1) ZLR 220 as pointing to the fact that Appellant previously used the same name. On the basis of these grounds he therefore dismissed the first objection in limine.

In regards to the second ground of objection of an inadequate statement of claim the Designated Agent found that on the basis of Section 125 of the Act the Appellant had the obligation to keep the record/documents pertaining to its employees. The onus did not lie therefore on the Respondent but on the Appellant to produce such contracts. The Respondent had in this case presented their sworn affidavits and previous payslips to prove they were employed by Appellant. This had the result of shifting the burden onto the Appellant to disprove the Respondents claims using the records of employment kept for each of the employee. The Designated Agent accordingly dismissed the second ground of objection.

In regards the third of objection as to whether or not the claims were prescribed, the Designated Agent after considering the arguments as well as the authorities referred to by both parties before him, and upon outlining the provision of Section 94 of the Act, came to the conclusion that the claims had not prescribed. His reasoning was that the Respondent were placed on unpaid leave in January 2013 and subsequently there was non-payment of salaries. They had reported their claim in 2017. Designated Agent was of the view that the claim would ordinarily be regarded as prescribed under the provision of Section 94 (1) of the Act. However, in this case, the case fell under the exception in Section 94 (2), in that the unfair labour practice was ‘continuing’ at the time of referral of claims to the National Employment Council in 2017. He relied on the authority in Chenjetayi Mapundu v Zimbabwe Revenue Authority LC/H/41/13. He therefore dismissed the objection.

In regards the last ground of objection that there was no valid cause of action established by the claimants, the Designated Agent found that the ground also lacked merit. He found that on the basis of the authority in First Mutual Life v Jack Muzivi, it is settled law that a claimant must place before the tribunal a quantified claim. This the Respondents had done in this case. The onus was therefore on the Respondent to cross-examine the claims utilizing the records it had. The Designated Agent also dismissed the Appellant’s claim that the Respondent were not entitled to any salaries. He therefore dismissed the fourth and last ground of objection. Having reached this conclusion, he handed down an order in the following terms;

“In the result, the following order is made;

The preliminary points 1, 2, 3 and 4 are dismissed for lack of merit.

The respondent and applicants are to approach this tribunal within 14 days of this order for a set down and the merits.

Respondent to bear cost of suit.”

THE APPEAL

The Appellant was dissatisfied and noted the present appeal. The appeal is noted on the basis of the following grounds of appeal;

The Designated Agent erred and misdirected itself in fact and in law in finding that there was a properly cited Respondent before it or that the Appellant (Respondent a quo) was properly cited.

The Designated Agent erred and misdirected itself in law and in fact in finding that that the Respondents were properly before it and/or that they had a valid cause of action.

The Designated Agent erred and misdirected itself in law in finding that the Respondents do not have the onus to prove their claims against the Appellant and, conversely, that such onus lies with the Appellant.

The Designated Agent erred and misdirected itself in law in failing to find that the Respondents’ claims had been extinguished by prescription.

The Respondent filed a Notice of Response. Through the Opposing Affidavit of one William Seremani, whose designation is given as General Secretary of National Mine Workers Union of Zimbabwe, the Respondent responded to the grounds of appeal.

PRELIMINARY OBJECTION

The Appellant through its Heads of Arguments raised a preliminary objection as to whether or not there was valid opposition to the appeal. The Appellant submission was that the appeal had not been opposed by the Respondents themselves. It had been purportedly opposed by an official of a trade union namely William Seremani. The said William Seremani had, not, however, in his opposing affidavit averred that he was authorized by all the Respondents to oppose the appeal on their behalf. Neither had he produced any supporting affidavit by any of the Respondents. This rendered the Notice of Response defective. The Appellant relied on Retrenched Employees of National Breweries Limited v National Breweries Limited v The Ministry of Public Service, Labour and Social Welfare SC 121/02 where the Supreme Court had found the need for supporting affidavits in an action that was similar to the action before this Court. The Respondent also relied on Chisvo and Ors v Aurex (Private) Limited and Anor 1999 (2) ZLR 334 (HC); Gweru Water Workers Council v City of Gweru SC 25/15.

It was Appellant contention on this basis there was no valid Opposing Affidavit. The appeal not having been properly opposed therefore Rule 29 (b)(1) of the Labour Court Rules, 2017 had to kick in. In other words, the appeal had to be allowed in the default of a valid Notice of Response.

The Respondent, through their Heads of Argument submitted that the said William Seremani, deponent to the Respondents Opposing Affidavit, was the General Secretary of the National Mine Workers Union of Zimbabwe. He was seized with the facts of the matter right from inception. As such he could positively swear on the affidavit on behalf of all the Respondent. The Respondents submitted that they had however omitted to attach the power of attorney authorizing the Secretary General to sign documents such as the Opposing Affidavit on their behalf. The law allowed anyone to sign the affidavit as long as the person is seized

with the facts of the matter. The Respondents indicated that however out of an abundance of caution they would make an oral application before the Court on the date of hearing to submit the Special Power of Attorney granted to the said William Seremani. On this basis Respondent submitted that their Notice of Response was valid at law and had to be considered by the Court.

When the parties appeared for the hearing they initially made submissions on the preliminary issues. The Respondent, through Mr Masasire, made an application for leave to file, further papers in the form of Special Power of Attorney, in which the Respondents in the matter were nominating, constituting and appointing William Seremani, to act, sign, represent and execute any papers/documents relating to the matter on their behalf. Mr Masarire, submitted that the document had been omitted by mistake. It ought to have been attached to the Opposing Affidavit. He further submitted that the Appellant would not suffer any prejudice through the inclusion of the document in Respondents papers.

Mr Sithole, for the Appellant, was opposed to the introduction of the document styled ‘Special Power of Attorney’. He disputed the existence of this document prior to the date of hearing. He contended that the document had been created by Respondent after realising that the point in limine by Appellant was merited. It was clear in any event from a perusal of the record, more particularly on page 77 in the Opposing Affidavit by William Seremani that he did not refer to any Special Power of Attorney at the time he swore to his Affidavit. Mr Sithole submitted Appellant stood to be prejudiced by the introduction of this document as in its ground of appeal number 2 the Appellant was taking issue with the very same issue. The document was in any event not produced in the hearing a quo. It thus could not properly be placed before this Court. Mr Sithole also pointed to patent defects in the document that in certain instances there were no signatures by the Respondents, in some instances only the identification numbers were reflected but not the full names of the employees. There were also numerous alterations made to the document. All in all, the document would not assist the Court in any way.

Mr Sithole also referred to a High Court matter in Chisvo & Others v Aurex (Private) Limited & Anor 1999 (2) ZLR 334 (HC) where that Court found that the Appellant in that matter had no power to represent the 255 other persons, in circumstances where, he, had not in his Founding Affidavit clearly stated his capacity and identified the persons he purported to be representing. In that case there had been an attempt to file a signed document entitled ‘Special Power of Attorney’ drawn by the persons granting authority to Mr Chisvo. The High Court had taken the approach that the document could not assist the court, what was required was an

explanation from the employees indicating that indeed they had instructed Mr Chisvo. Mr Sithole urged the court to make a similar finding in this case. He urged for a dismissal of the application to incorporate the said document.

Mr Sithole also addressed on the point in limine as taken by Appellant. The point was that there was no valid opposition to the appeal. Mr William Seremani the deponent to the Opposing Affidavit on page 77 had not complied with Rule 25 (1)(a) – he had not produced proof of right to represent Respondents in this case. There were also no Supporting Affidavit from the Respondents. Mr Sithole referred to Retrenched Employees of National Breweries Limited v National Breweries & Ministry of Public Service, Labour and Social Welfare SC 121/02 where the Supreme Court dealt with a similar case. The Supreme Court had found that in absence of even a single supporting affidavit from the employees concerned, Mr Nathan Mudondo, in his capacity as Chairperson of the Workers Union Committee, had, placed insufficient proof of a proper mandate to represent the employees. This was also the case in casu.

Mr Sithole further submitted that the law was also clear, that trade union cannot just decide to institute proceedings on behalf of employees as had happened in casu. They have to have a proper mandate. In conclusion he submitted that there being no valid opposition before the court the court had to proceed in terms of Rule 29 (b) of the Labour Court Rules, 2017 by either entering a default judgement or to proceed to determine the matter on the merits after receiving Appellant submissions.

Mr Masarire, in reply, submitted that the Respondent would suffer no prejudice were the Court to grant the application to incorporate the documents. He dismissed the suggestion that allowing the documents to form part of the record would affect ground number 2. In regards the point in limine as taken by Appellant he submitted that the application to include the Special Power of Attorney was made out of an abundance of caution. It was the correct position that there had been a valid opposition to the appeal as filed. The Respondents had made clear their intention to oppose appeal by filing a Notice of Response. Secondly it was also proper for Mr. William Seremani to sign on behalf of the Respondents under the provision of Rule 21 (3)(b). Rule 21 (5)(a) also allowed for filing of an Affidavit by a person who can positivity swear to the facts or averments made therein. In this case Mr. William Seremani, respondent’s trade union representative, was in a position to raise the issues of law pertaining to the ruling by Designated Agent. Mr Masarire further submitted that even in the absence of

Special Power of Attorney there was a valid Notice of Response before the Court. He referred to the case Tianze Tobacco (Private) Limited Mutunyendwa HH 626/15 where Mathonsi J (as he then was) found that where a deponent to a Founding Affidavit states he has authority to represent a party before the Court should be inclined to believe that. In that case reliance had been placed on African Banking Corporation of Zimbabwe t/a Bank ABC V PWC Motors & Others HH 123/12. Mr Masrire also dismissed the contention by Appellant that a Trade Union has to have proper mandate to represent employees. The submission was said to be misplaced as in this case Mr Seremani was not representing Respondents. He had only deposed to the Opposing Affidavit as someone who was privy to the proceedings before the Designated Agent. In conclusion Mr Masarire urged the Court to find the point in limine as meritless. The matter had been properly opposed.

After listening to submissions by parties and upon consideration of the record of proceedings, the court found that there was a valid Notice of Response before the court.

The court in finding that a valid Notice of Response was properly before the court took into account the following factors;

That the matter was an appeal premised on a Designated Agent’s interlocutory ruling.

The determination showed that the same parties that were before the Designated Agent were before this court.

The deponent Mr. Seremani was the General Secretary of the National Mine Workers Union of Zimbabwe. In the Opposing Affidavit he stated Respondents were all members of Union and as such he had power to depose to Opposing Affidavit. The record indicated that Respondents had approached the Designated Agent through that Union. Mr. Seremani was also involved in proceedings before the Designated Agent. He was therefore privy to the issues; he could therefore positively swear to the facts. He thus had a right of representation before the Labour Court through Section 29 of the Labour Act [Cap 28:01].

The court was however of the view that Respondents needed to individually authorise him to sign, act and do all that was outlined in Power of Attorney. This was in the event of a change of circumstances of the individual employees, maybe some of the Respondents had

died, or had lost interest in the litigation e.t.c. He thus had to have a clear mandate from each of the Respondents that were still intent on pursing their claims.

It was also clear to the court that Sections 21 (3)(b) of the Labour Court Rules, 2017 and 21 (5)(a) as referred to by Respondent counsel clearly allowed for a Trade Union Representative to file an affidavit as had happened in this case. It was also not contested by Appellant that William Seremani having been involved in previous proceedings, he could thus positively swear to the facts and averments as made in the Opposing Affidavit. Sections 21 (3) b and 21 (5)(a) read as follows;

21 (3) Every written application, appeal, review and notice of opposition shall –

(a) . . . . . . . . . . . . . . . . .

(b) Be signed by the applicant or respondent, as the case may be, or by his or her legal practitioner or union representatives; and

21 (5) An affidavit filed with a written application, appeal or review –

Shall be made by the applicant or respondent, as the case may be or by a person who can swear to the facts or averments set out therein, and;

The Appellant had also raised the issue of possible prejudice should the Respondents be allowed to introduce the Special Power of Attorney. The submission did not find favour with the court. In the court’s considered view the Appellant still retained the right to raise under its 2nd ground of appeal the issue as to whether or not the Respondents/Trade Union were properly before the Designated Agent. In the final analysis the court handed down an order (1) dismissing the point in limine as taken by Appellant and (2) allowing the application for the incorporation of the Special Power of Authority and affidavits by the Respondents.

The Respondent as directed by the court did file the Supplementary Affidavits/Special Power of Attorney. Through a letter dated 4 October 2022, Appellant lawyers confirmed receipt of the document and reserved the right to raise any other issues pertaining to those filed documents. The matter having thereafter been reset, the parties appeared and presented arguments on the merits.

MERITS

There are essentially four issues for determination before this court. The first, is, whether the Appellant was properly cited before the Designated Agent. The second issue, is, whether there was a valid cause of action. Thirdly, whether the Respondent, being the claimants

in the tribunal a quo had onus to prove their claims. Fourth and lastly, whether the matter had prescribed. I turn to address the issues seriatim.

WHETHER OR NOT THE APPELLANT WAS PROPERLY BEFORE THE DESIGNATED AGENT

The Appellant contends under this ground that it was wrongly cited with the result that there was no Respondent before the Designated Agent. The Appellant submits that initially the statement of claim did not cite a Respondent at all. When it raised an objection ‘‘Dalny Mine’’ was then cited as Respondent. Later the Respondent was again cited as “Dalny Mine-Riozim”. In paragraph 2 of the statement of claim the Respondent was said to be Rio Gold Private Limited. The Appellant has referred the court to several pages in the record to bolster its argument. In oral submissions Mr Sithole emphasised that it was important for Respondent to identify who “Dalny Mine” was before the Designated Agent.

There was on page 134 of the record an averment made that Respondent had been purchased by Rio-Gold Private Limited. The same point also appeared on page 131 where a letter had been written by Falcon Gold in which it was stated that Falcon Gold Limited had been sold to Rio Gold Limited. On page 190 Respondent had indicated “Dalny Mine” was a trading name for Falcon Gold. In his determination the Designated Agent however failed to indicate which amongst the three entities was the Respondent in the proceedings. Mr Sithole also attacked the Designated Agent’s finding that based on the celebrated judgment in Dalny Mine v Banda the citation of the same was proper before him. He submitted that decision could not be relied upon, as, firstly, the issue of citation was never raised in those proceedings, secondly, there was no dispute as to who “Dalny Mine” as there were no different entities involved as was the case in casu. He also referred to a recent judgement in Commissioner General Zimra v Varietal Investments Private Limited SC 88/21 in which two key principles had been laid, firstly, that a court cannot proceed to the merits before satisfying itself that there is a properly cited Respondent. Secondly, the Supreme Court in the same judgement had stated that it was immaterial that the Respondent, had, in previous proceedings, been cited wrongly. If, in the subsequent proceedings the issue of citation is raised then the court is duty bound to determine the point. In that matter the Supreme Court had upheld the point in limine and nullified proceedings, Mr Sithole also referred to other authorities as referred to in Appellant heads.

Mr Sithole also referred to a second issue, being the issue of the citation of the Respondent. He submitted that there were 714 employees but they all had not produced supporting documents to establish their employment status. He submitted further that the list produced was also questionable as it in some instances carried duplications. He also pointed out discrepancies between the Special Power of Attorney which had been produced on 27 March 2021 and the Special Power of Attorney filed after this court directive in September 2022. He made specific reference to some anomalies in such as with “Guy Phiri” whose identification numbers were different under the two Special Powers of Attorney. In the first document the identification number had been given as 22-054987-J-22 whereas in the second it was document given as 22-054706-F-12. The signature appended on both documents by the said ‘Guy Phiri’ were also said to be different. Mr Sithole also referred to instances of identical names and identification numbers allocated to two different persons. “Gift Mbewa” had also appeared twice- although the Identification numbers were the same the signatures however were different.

Mr Sithole submitted that in labour matters a dispute can only be valid were there exists an employer/ee relationship. The Appellant had aptly referred to the Isoquant judgement. It was his submission in view of the noted anomalies including fictitious name, it was important for the Designated Agent to have insisted on each Respondents establishing/proving before him that there was an employment relationship. He also underlined that it was in any event a principle of law that where a Trade Union is representing a group of employees, the various employees need to lead evidence to establish individual cause of action. The Appellant in the heads had referred to Chisvo & Ors v Aurex Private Limited and Another 1999 (2) ZLR 334 (HC). He submitted in this case the Respondents had failed to lead evidence to establish whether they were permanent, fixed term employees, their grades/positions whether they were returned or not e.t.c. in the absence of such their claim was therefore invalid.

Mr Masarire, for Respondent, submitted the Appellant had been properly cited. “Dalny Mine” was an entity well known in the entire Zimbabwe. Mr Masarise submitted that it was improper for Counsel for Appellant to claim “Dalny Mine” was a non-existent entity. Counsel himself had been given instructions by the same entity in its capacity as the employer to defend the matter. He also distinguished the Freda Rebecca authority referred to by the Appellant on the basis that Freda Rebecca had in that matter supplied its correct name. In this case however the Appellant had baldly stated that it was incorrect citation but had not gone further to provide the correct name. The bottom line was that “Dalny Mine” was a well know entity. It had been

sufficiently identified for it to respond to the process. Mr Masarire placed reliance on Maswau v Delta Beverages HB 172/22 were Cheda J stated that if a party is sufficiently described in such a way as to be properly identified then there is no mis-citation. The same sentiments had also been made in a South African case in Vannuren Brawn & Summers. Mr Masarire submitted that the facts in this case were distinguishable from the case authorities referred to by Appellant. In those cases, Appellants were not legal person capable of suing or being sued. In casu the Appellant had identified itself as the employer in documents such as in payslips rendered in evidence. The inclusion of the name Rio Gold had however been done in error and this was clarified/amended before the hearing. The Respondents were insisting that the proper name for Appellant is Dalny Mine. The Appellant had also failed to explain why it would identify itself as “Dalny Mine” and then allege that it has no legal persona.

In response to the second issue under his head, Mr Masarire submitted that Respondents were cited properly before the Tribunal. The issue however was not raised before the Tribunal. He also disputed that there was duplication of names on the list supplied. The Appellant had also not shown how there were duplicated. There were however instances of identical names but with different identification numbers. This however could be addressed at the hearing. He further submitted that the Respondent were all employees of the Appellant. Their affidavits had been supplied to the Designated Agent. Payslips had also been supplied to the Appellant and the Designated Agent. There was therefore no basis for the objection as raised by the Appellant.

The Court’s finding in respect of the first ground of appeal is that the ground ought to be dismissed. The Designated Agent’s finding was that the Appellant was properly cited on the basis that it was Appellant which was obligated to keep proper records and ought to have placed before the Designated Agent the certificate of incorporation in order to indicate its proper name. The Designated Agent was correct in respect of his contention that the Appellant’s approach was against principles as enshrined under Section 2A (1) of the Labour Act which emphasise social justice. The approach that ought to have been taken in such a case is the one as advocated in Mapondera & 55 others vs Freda Rebecca where if a party has been misdescribed that can be remedied by an application for amendment provided the Appellant has provided the correct name. From the record it appears in this case the Appellant only made a bold assertion that the cited name is not a legal persona, the Appellant did not go as far as supplying the correct name as what happened in the Freda Rebecca case referred to in the

proceedings. It is clear that the Designated Agent was correct in arriving at the conclusion that Appellant was properly cited. The first ground ought to fail accordingly.

WHETHER RESPONDENT WERE PROPERLY BEFORE THE TRIBUNAL A

QUO.

As contended by the Respondent this issue was not taken before the Designated Agent it is therefore not properly taken before this court. This court is sitting as an appellate court, it thus has no power/ competence to determine an issue not taken in the tribunal a quo.

WHETHER THE DESIGNATED AGENT ERRED AND MISDIRECTED HIMSELF IN SHIFTING ONUS TO APPELLANT.

The Appellant contends the Designated Agent erred and misdirected in finding that it had onus to prove the claims as submitted by the Respondents before him. The law is settled on this point. It is a trite principle of law a party who alleges something must prove it. The court was aptly referred to Brooks vs Davidson 1988 (1) ZLR 365 where it was held that;

“The general principle governing the determination of the incidence of the onus is the one stated in the Corpus luris simper necessitas probandi incumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore’.”

The court was also referred to First Mutual Life vs Muzivi 2007 (1) ZLR 325 (S). The circumstances in this matter however clearly show that the burden of proof had indeed shifted to the Appellant. Whilst it is indeed correct that a valid labour dispute may only arise if there is a valid contract of employment. The Appellant aptly referred to Isoquant Investment Private Limited t/a ZIMOCO v Memory Darikwa CCZ 6/20.

The record of proceedings however shows that the Respondents had in this case placed before the Designated Agent their names, payslip and written letters to show in this case that there was an employment relationship existing between the parties. The Appellant is quite correct however that Section 125 of the Labour Act (Cap 28: 01) does not place an obligation on the employer to assist the employees to prove their case. In view of the circumstances of this case where the Respondents submission was that they were not the custodian of the

contracts of employment, that they did the next best thing which is to tender other evidence in support of their claim. In view of the fact that there had been no formal termination of their employment and that some of them were still enjoying a housing benefit for an example, the onus clearly shifted to the Appellant to prove that each and every Respondent was or was not their employee and that they had in fact been terminated. The Designated Agent was clearly correct in the conclusion reached on this point.

WHETHER OR NOT THE MATTER HAD PRESCRIBED

The Appellant contends the Respondents’ alleged cause of action was complete in 2013 and that they lodged their complaint after 4 years from when the need to act arose. The Designated Agent ought to have therefore declined jurisdiction on the basis that the claims had prescribed under Section 94 of the Labour Act. The Respondents9 on the other hand contend that the claims fall under the exception in Section 94b (2) as the Appellant conduct was a ‘continuing unfair Labour Practice’. The Appellant contend that the placement of Respondent on unpaid leave as a measure to avert retrenchment was a once off event. This is because in terms of Section 12D of the Act, such measures cannot be implemented for longer than 12 months. After 12 months the Respondents ought to have instituted their claims. The Respondent cannot reasonably continue to regard themselves as employees. The Designated Agent ought to have found the claims were extinguished by prescription.

My finding is that the Designated Agent was once again correct in finding that there was a continuous unfair labour practice. It is apparent from the record, whilst indeed the Respondents were placed on unpaid leave, the Respondents contract were not terminated or if there were, no such evidence was placed before the Designated Agent. The Appellant after placing Respondents on unpaid leave ought to have resorted to the Labour Act to ensure lawful terminations. To the extent therefore that there is nothing on record to show the terminations even though the Respondents were still enjoying some of the benefits, such as housing, the Designated Agent could not be faulted for finding that there was a continuous unfair labour practice. It may be correct that the Respondents were not entitled to claim salaries maybe after 2015 as contended by the Appellant, but they certainly were entitled to salaries before that date as the claims had not all prescribed.

In the result it is ordered as follows;

The appeal be and is hereby dismissed with costs.

The matter shall be remitted to the Designated Agent for a determination on the merits.

The matter shall be heard and determined within the next 60 days.