Ezra Chadzamira Ruvai v Samson Fati Fati

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/10/2016
MASVINGO, 22 MARCH 2016 &
CASE NO LC/MS/47/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/MS/10/2016

MASVINGO, 22 MARCH 2016 &			               CASE NO LC/MS/47/2015

13 MAY 2016

In the matter between

EZRA CHADZAMIRA RUVAI						APPELLANT

Versus

SAMSON FATI FATI							RESPONDENT

Before the Honourable D L Hove J

For the Appellant      C Ndlovu  (Legal Practitioner)

For the Respondent   K Mawoyo  (Trade Unionist)

HOVE J:

In this case, the respondent alleges that he was employed by the appellant on 5 August 2011 up to October 2014. That he was guarding the respondent’s trucks and that a wage of $140-00 per month was agreed between the parties.

The trucks were allegedly sold off and the appellant dismissed the respondent on the basis that the appellant was no longer able to pay.

The appellant also alleged that he was paid from the inception of the contract the agreed $140-00 per month until February 2013 when he was not paid as agreed or at all up until the date of dismissal i.e. October 2014.

Whether or not there was in existence a contract of employment between the parties is factual and the arbitrator found as a fact that there was a contract of employment between the parties.

This court cannot interfere with findings of fact by the tribunal a quo simply because firstly as a court siting, to hear appeals, it does not have the same advantages as the “trial” court to assess the parties as they testify. See in this regard the case of Tirivangana v University of Zimbabwe SC 21-13 where the court held that:

“The court a quo could only have upset the findings of fact by the arbitrator. If the exercise of his discretion was irrational on the evidence placed before him as was stated by KORSAH JA in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 at 670.”

The arbitrator in casu made specific findings of facts which I can’t interfere with.

Secondly, the law only requires this court to hear appeals raising points of law only when dealing with appeals from an arbitrator.

Section 98 (10) of the Labour Act [chapter 28:01] provides as follows:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

So in so far as factual issues are concerned this court cannot interfere.

The grounds of appeal however are two and they are that:

The arbitrator erred at law in placing the onus to prove the existence of a contract of employment on the appellant.

The arbitrator erred at law in finding that there was really an employer-employee relationship between the two parties when there was no basis for arriving at such a legal conclusion.

The second ground is only raising a question of fact. Questioning the factual finding made by the arbitrator as to the existence of a contract. A ground of appeal cannot be premised on a point of fact simply by the stating that “the arbitrator erred on a point of law”. It must be clear that what is being challenged is a question as to what the law is. In the case of South Africa & Ors v Press Corporation of South Africa 1992 (4) SA 791 (A) the court stated that:

“Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true law is on a certain matter…”

This is not the case in this matter. In ground number two the question for argument and determination is whether or not there was an employment relationship between the parties. This is factual. The ground of appeal is improperly before the court and is struck off.

The first ground of appeal raises a point of law i.e. who bears the onus in proving the existence of a contract.

The appellant correctly submitted that it is trite that he who alleges must prove reliance for this proposition was placed on the case of Heywood Investments (Pvt) Ltd t/a GDC Hauliers v Zakeo SC 32-13.

The arbitrator considered the employer’s submission that there was no employer-employee relationship because there was no contract of employment to prove that a contract of employment existed.

He reasoned that a contract of employment can be written or verbal and the fact that there is no written contract in itself is no basis for finding that a contract of employment did not exist. The arbitrator did not find that the employer had the onus to prove an employer-employee relationship but the arbitrator was responding to a submission by the employer that the respondent was doing “peace work”. This issue of piece works was brought in by the appellant or in other words was alleged by the appellant. The appellant ought to have proved the “piece work” contract of employment that he alleged but he did not. The arbitrator therefore did not “err at law in placing the onus to prove the existence of a contract of employment on the appellant” as alleged in the first ground of appeal.

It is mischievous for an officer of the court to allege that the arbitrator placed the onus on the employer when no such finding was made.

What is clear is that the arbitrator in considering the facts before him decided that the facts show that there was a contract of employment and he made a finding that there existed a contract of employment.

The first ground of appeal is therefore without merit and must be dismissed.

In the result, I make the following order:

Ground of appeal number two is struck off.

The first ground of appeal is dismissed.

The appeal is dismissed with costs.

Ndlovu & Hwacha, appellant’s legal practitioners