Marlborough Civic Centre Owners Association v David Mazambara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 9 SEPTEMBER 2025 AND 1st OCTOBER
JUDGMENT NO. LC/H/356/25
CASE NO. LC/H/540/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 9 SEPTEMBER 2025 AND 1st OCTOBER 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/356/25 CASE NO. LC/H/540/25

MARLBOROUGH CIVIC CENTRE OWNERS

ASSOCIATION	APPELLANT

AND

DAVID MAZAMBARA	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Mr. L.C. Ndoro

For Respondent	Mr. G. Togara

MURASI J.,

This is an appeal against the decision of the Designated Agent for the NEC for the Commercial Sectors. Respondent was employed by the Appellant. Respondent reported an dispute of unfair labour practice at the Labour Office. That Office later referred the matter to the NEC for Commercial Sectors for adjudication. The Designated Agent found in favour of the Respondent. The Appellant is disgruntled with this result and has approached this Court for relief.

Appellant’s grounds of appeal are formulated as follows:

The Designated Agent erred on the law and seriously misdirected himself on the facts by holding that he had jurisdiction over the appellant when it was clear that the appellant did not do any business which fell within the commercial sectors.

The Designated Agent further erred and seriously misdirected himself by failing to take into account the amounts of money which respondent collected directly from appellant’s tenants as these amounts have reduced any outstanding shortfalls on the salaries.

The relief that Appellant seeks from the Court is as follows:

The appeal succeeds with costs.

The determination of the Designated Agent dated 27 May 2025 is hereby set aside and the following is substituted;

The Respondent’s point of jurisdiction be and hereby upheld and the Claimant’s claim be and is hereby struck off for want of jurisdiction.

Alternatively:

The matter be and is hereby remitted back to the Designated Agent for quantification of outstanding shortfalls on salaries taking into account monies that were received by the Respondent from the Appellant’s tenants.

Submissions by the Parties

At the commencement of the oral hearing, Mr. Togara stated that the Respondent was abandoning the preliminary issues that had been raised in the documents filed of record as the Respondent was desirous in having the matter dealt with on the merits.

Mr. Ndoro stated that he would abide by the documents filed of record and pointed out that the Designated Agent did not have the jurisdiction to preside over and determine the matter in question. He submitted that this was because the Appellant’s line of business did not bring it into the category of those businesses that fall within the commercial sectors. He further submitted that the matter had been filed with the Labour Officer in terms of section 93 and the correct procedure would have been to issue a Certificate of No Settlement and refer the matter to arbitration in terms of section 93 of the Labour Act. He further stated that the Appellant did not belong to any sector by virtue of the business of the Association.

Mr. Ndoro further submitted that the contract of employment between Appellant and Respondent was verbal. Asked by the Court whether the verbal agreement took care of the Respondent’s grade, conditions of employment, termination thereof, he stated that these were not covered. Mr. Ndoro further stated that Respondent was tasked with collecting monies from tenants which he was supposed to surrender but had not done so and that these amounts should be set off against what the Designated Agent determined to be owed to the Respondent.

In response, Mr. Togara stated that the matter did not have any prospects of success. He submitted that the Labour Officer, after having listened to the parties was of the view that the matter should properly be handled by the NEC for the Commercial Sectors. Mr. Togara further stated that the legislation does not allow the Labour Officer to deal with a matter which should properly be dealt with by the Designated Agent for that sector. He further averred that Appellant could not seek inconsistent remedies from the Court. He argued that Appellant, in one vein, was alleging that the Designated Agent did not have jurisdiction, but in the other, wanted the matter remitted to the same Designated Agent for quantification. Mr. Togara stated that the Labour Officer was correct in referring the matter to the NEC for the Commercial Sectors and that the Designated Agent had correctly pronounced on the matter.

ANALYSIS

In ZINWA v Mwoyounotsva SC 28/15, the Supreme Court expounded on the position to be followed by an appellate court where it is requested to interfere with factual findings by a lower court or tribunal. That Court held at p. 7 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 decisions 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.”

The same principle was emphasized in Friendship v Cargo Carriers Ltd SC 1/13, at p 6 where the court held that:

“It is now settled that an appellate court will not interfere with the exercise of discretionary power by a lower court unless it is shown that the lower court committed such irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision.”

In the first ground of appeal, Appellant takes issue with the decision of the Designated Agent to ‘clothe’ himself with jurisdiction. It is pertinent to have regard to what the Designated Agent had to say. In the determination sought to be impugned, the Designated Agent reasons as follows on this point:

“In terms of Section 63 (3a) of the Labour Act, (28:01), a Designated Agenet can only redress or attempt to redress a matter where such dispute occurs in the undertaking or industry for which the Designated Agent has been authorised to redress or attempt to redress issues. As a matter of law, the First Schedule of the Collective Bargaining Agreement for the Commercial Sectors defines an employer in the Commercial Sectors in terms of section 2 (1) (a) of Statutory Instrument 45/93, and the business of the Respondent which is building caretaking is covered therein. For the avoidance of doubt, the core business of the Respondent which is building caretaking is a commercial activity that falls under Statutory Instrument 45 of 1993, the Collective Bargaining Agreement for the Commercial Sectors of Zimbabwe. Therefore, this tribunal is fully clothed with the jurisdiction to entertain this matter and the preliminary point raised by the Respondent is hereby dismissed for lack of merit.”

I should point out that Mr. Ndoro did not put any spirited argument to show why this Court should view this finding as being erroneous. Mr. Ndoro argued strenuously that Appellant did not belong to any sector. That is a very surprising assertion. On the other hand, the record contains a letter from the Appellant which offered Respondent employment which is dated 29 November 1999. The pertinent portions show that the ‘Heading’ of the letter is titled

“CONFIRMATION OF YOUR EMPLOYMENT AS A PERMANENT CARETAKER.”

In the body of the letter appears the following: “We therefore reward you as follows:

You are hereby confirmed as full time permanent caretaker.

Your salary shall be increased from $1600-00 per month to $1800-00 with effect from 1 December 1999.”

The words ‘Caretaker’ come from the Appellant and not the Designated Agent. The Designated Agent referred to statute and that the definition of ‘employer’ in that statute included the Appellant. Mr. Ndoro did not refer to this finding in either his oral or written submissions. Can it therefore be said that the decision made by the Designated Agent in this regard was evidence that he had not applied his mind to the issue to be resolved or that the decision was clearly irrational. The opposite is true. The Designated Agent referred to the relevant statute and concluded that Appellant belonged to that sector. There is therefore no merit in the first ground of appeal.

The submissions made in respect of the second ground of appeal show the lack of consistency on the part of the Appellant. Mr. Ndoro submitted that there was no written contract of employment between Appellant and Respondent. The letter referred to elsewhere in this judgment confirming the Respondent as ‘Permanent Caretaker’ puts paid to the submissions by Mr. Ndoro. The Court found it extremely hard to believe that Appellant would seek to defend a suit of underpayment of wages based on a verbal employment contract!! The Court enquired of Mr. Ndoro whether the verbal employment contract contained issues such as grade, termination and other attendant issues and the response was in the negative. The Designated Agent went on to determine Respondent’s grade emanating from the Statutory Instrument he had referred to, and the requisite salary grade Respondent belonged to. Such findings could not be challenged given the fact that Appellant’s submissions were that there was a verbal employment contract between the parties. Appellant’s lack of candidness on this point is shown by the submissions made before the Designated Agent. It was argued before the Designated Agent that Respondent was employed and remunerated at the rate of $50-00 as he was only working for an hour a day. This position was not insisted upon by Mr. Ndoro in argument. In any event, it differs clearly from the letter of appointment which has been referred to elsewhere in the judgment.

There has been a suggestion that the amounts awarded to Respondent should be set off against the monies that Respondent was collecting from tenants which he did not surrender. Firstly, there is the first admission that Respondent was tasked with caretaking duties. Secondly, the figures involved are not known. Appellant has not provided these figures. 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 who 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.”

As stated earlier, Appellant simply made bold and inconsistent averments which have not been supported by any evidence. In the oral hearing, the Court enquired as to what monies the Respondent was collecting. It then was revealed that the Appellant was failing to pay Respondent’s salaries and Respondent had to go around collecting $5-00 from each tenant so as to augment his salary and some of the tenants were in fact in arrears. There is thus no merit in the second ground of appeal. The appeal ought to be dismissed.

The following order is appropriate.

The appeal, being devoid of merit, is hereby dismissed.

The decision of the Designated Agent dated 27 May 2025 is hereby upheld. 3.

Thondhlanga & Associates-	Appellant’s legal practitioners Zimbabwe Federation of Trade Unions-	Respondent’s representatives