Honourable Plaxcedes Magwewgwe N.O. v Zimbabwe Platinum Mines Private Limited & Anor

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/251/25
HELD AT HARARE 21 OCTOBER 2024
CASE NO: LC/H/187/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/251/25 HELD AT HARARE 21 OCTOBER 2024	CASE NO: LC/H/187/24

AND 22 JULY 2025

In the matter between

HONOURABLE PLAXCEDES MAGWEWGWE N.O.	APPLICANT

And

ZIMBABWE PLATINUM MINES PRIVATE LIMITED	1ST RESPONDENT

And

LIBERTY DAKARAI	2ND RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE, JUDGE.

FOR THE APPLICANT: NO APPEARANCE FOR THE 1ST RESPONDENT: T. DUVE

FOR THE 2ND RESPONDENT: A. MASANGO

MAKAMURE J:

Following an appeal made to the Supreme Court against a judgment of this Court, the Supreme Court made the following order (R-SC8/20):

‘1.The appeal succeeds in part with each party bearing its own costs.

In the exercise of this court’s power in terms of s25(2) of the Supreme Court Rules Chapter 7:13 paragraph 3 of the judgment of the court a quo is set aside.

The matter is remitted to the court a quo before the same judge to determine the claim for discrimination by non- payment of annual safety bonus and cessation of leave days.’

This Court made an order dismissing the claims for discrimination for non-payment of annual bonus and cessation of leave days. The following are the reasons.

Parties appeared in Court. It was argued on behalf of the 1st respondent that the claims for discrimination by non-payment of annual safety bonus and cessation of leave days were not proved before the applicant and therefore there was no error on the part of the applicant. In heads of argument submitted on behalf of the 1st respondent it was submitted that the findings of the applicant were justified since there was no evidence to prove the two claims. The Court was referred to the case of Watt(or Thomas)v Thomas [1947]1 ALLER 582 (HL) where the court emphasized that an appellate court should not interfere with findings of a trial court since it does not enjoy the ability to assess evidence in the same manner that a trial court has. The Court was urged to dismiss the two claims with costs against the 2nd respondent on the punitive scale on the basis that the 1st respondent has been unnecessarily put out of pocket in having to defend a baseless application .

On the other hand, it was argued on behalf of the 2nd respondent that annual safety bonus was company policy that where there were no injuries ,bonus would be paid and that the 2nd respondent ought to have been paid such bonus. It was further argued that by failing to pay 2nd respondent annual bonus the 1st respondent discriminated against the 2nd respondent. In the supplementary heads of argument filed on behalf of the 2nd respondent it was submitted if applicant wanted more evidence, she should have asked for it. In support of the claim for discrimination the court’s attention was drawn to provisions of s 5 of the Labour Act , Chapter 28:01 (the Act), where the Act provides for the protection of employees against discrimination and s56 of the Constitution of Zimbabwe which provides for equality of all

persons before the law and the right to non-discrimination. Reference was also made to the case of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CCZ6/20 where the Constitutional Court stated how conciliation should be conducted.

The findings of the applicant with respect to the two claims were that and I quote:

‘The discrimination allegations based on non- payment of annual safety bonus in June 2019 and cessation of leave days have not been fully substantiated by the claimant, the filed December 2019 payslip indicates leave balance at 63.70 and there is nothing filed to compare with so as to ascertain the cessation and the payslip also reflects year to date safety bonus and performance bonus for which period , I cannot establish.’

What I understand from the above is that the applicant was not given sufficient evidence to establish the claims. It was up to the 2nd respondent to show that the 1st respondent had ceased granting him leave days . What the applicant was presented with, is all the evidence that was relied upon. Further, if, as was argued on behalf of the 2nd respondent , there was a company policy which entitled the 2nd respondent to the payment of annual safety bonus , that should have been produced. Such policy appears not to have been placed before the applicant.

Neither was it placed before this Court. There was therefore no proof placed before the applicant that the 2nd respondent was entitled to annual safety bonus and neither was there proof of cessation of leave days.

I agree with the submission on behalf of the 2nd respondent that the Act provides for equal remuneration of employees. However, there was no evidence placed before the applicant in support of the two claims. I also agree with what the Constitutional Court stated about conciliation . However, in the present matter the applicant made a ruling pursuant to a certificate of no settlement after conciliation had failed. This means that the applicant could only decide on that basis of what was placed before her.

It is trite that he who alleges must prove and further that the burden of proof in labour matters as in civil matters is on a balance of probabilities. In Astra Industries Limited v Peter Chamburuka SC 27/12 the Supreme stated that :

‘The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove.’

In the present matter it appears clear that there was no sufficient evidence placed before the applicant in support of the two claims. In view of the absence of evidence produced, I find that there was no error on the part of the applicant in the findings that were made.

In Susan Rich v Jack Rish SC 16/01 the Supreme Court , citing Hoffman and Zeffert in their book, The South African Law of Evidence , 4th Edition had this to say:

‘ There are no rules of law which define circumstances in which findings of fact may be reversed, but as a matter of common sense the appellate court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanour of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility.’

See also Hama v National Railways of Zimbabwe 1996 (1) ZLR664; Elford Dube & Nine Others v Awake Grace Ministries SC 104/21.

After considering the papers and argument I am persuaded to agree with the submission made on behalf of the 1st respondent that there was no reason for the applicant to find that the 2nd respondent was entitled to annual safety bonus and further that there was cessation of leave days. In the result I find that there was no proof that there was discrimination against the 2nd respondent by failing to pay him annual safety bonus and cessation of leave days.

An application for costs on the higher scale was made on behalf of the 1st respondent. The court has to exercise its discretion in awarding costs. It was this court’s considered view that there be no order as to costs.

It was in view of the foregoing that an order was made dismissing the claims with no order as to costs.

DUBE , MANIKAI & HWACHA, 1ST RESPONDENT’S LEGAL PRACTITIONERS.

MURONDA MALINGA LEGAL PRACTICE , 2ND RESPONDENT’S LEGAL PRACTITIONERS.