Robert Makovere v Bantwana Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 16 JULY 2024 & 3 JANUARY
JUDGMENT NO LC/H/5/25
CASE NO LC/H/450/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 16 JULY 2024 & 3 JANUARY

2025

In the matter between:-

ROBERT MAKOVERE

BANTWANA ZIMBABWE

JUDGMENT NO LC/H/5/25 CASE NO LC/H/450/24

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant	Godfrey Togara	(Trade Unionist)

For the Respondent	Zivanayi Welcome Makwanya (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the designated agent who dismissed appellant’s claim for alleged non - payment of allowances.

The background to the matter is that the respondent Bantwana engaged the appellant as a result based management intern from March to August 2023. Bantwana stated in the offer letter that it would pay Robert the employee $300 USD per month less NSSA and tax amounts. At the expiration of the contract Robert sought to recover from Bantwana subsistence allowances for the 143 days that he was in Bantwana’s employ. Bantwana refused to pay him that but offered to pay Robert USD 1000 in full and final settlement of its indebtedness to Robert. Robert was not happy with that offer as he was convinced that he was owed USD 90 per day for each of the 143 day he was an intern with Bantwana. He therefore approached the DA with the claim

that Bantwana had not paid him his allowances and to that end committed an unfair labour practice.

The DA after hearing the parties concluded that Robert had not clearly computed his claims so there was no evidence to substantiate the claim. She therefore dismissed the claims on the basis that the claims were not substantiated with evidence so they had no basis. The DA’s decision irked Robert hence his appeal to this court which appeal is the subject of this judgment.

Robert’s appeal grounds can be summarised as such:-

DA erred at law by not accepting that appellant be paid allowances yet these were supposed to be paid.

DA erred by saying that the claim was not clearly computed yet there was overwhelming evidence to that effect.

DA was so biased by not accepting the appellant’s claims at law.

In the result appellant prayed that the appeal succeeds and that Bantwana be ordered to pay him USD 12 895-00 as subsistence allowances for the period when he worked for Bantwana as an intern.

In response to the appeal Bantwana maintained that:-

DA was correct to rule that the appellant was not at law entitled to the allowances he was claiming.

Appellant was a student intern not entitled to any allowance at law but who was being paid USD 300 per month. He did not prove any of the allowances which he claims to have been entitled to.

The DA was not biased. Appellant failed to show how the DA was biased. In the result the respondent prayed that the appeal be dismissed for lack of merit.

The law on appeals is settled see Nyahondo vs Hokonya and others 1997(2)ZLR457. Applying the legal principles on appeals to the facts of the matter at hand each of the grounds is discussed below:-

Ground 1: -

Appellant says he was entitled at law to be paid travel and subsistence allowances from the period he worked away from the home office Bulawayo to the outskirts of Tsholotsho etc. He claims that the cumulative total of the travel and subsistence allowances stood at USD 90 per day.

The law on how contracts of internship are regulated is settled. See ZIMRA vs Mudzimuwaona SC4/18. It is clear that an internship contract is not an employment contract strictu sensu where the provisions of travel and subsistence allowances which appellant seeks to invoke apply to. It is stated as fact on record that appellant was a full-time employee of ZRP hence he could not be entitled to salaries from both Bantwana and ZRP. That Bantwana erroneously made the allowance they offered him subject to NSSA and ZIMRA did not mutate the arrangement into an employment contract. The contract remained for all intents and purposes a contract where the appellant was merely learning how to do the job of a result-based monitoring person. It did not mean that he became an employee of Bantwana. There was therefore nothing remiss in the DA’s conclusion that the claim had no legal basis. The ground being without foundation should fail.

Ground 2:-

The appellant claims that his calculus was based on the travel and subsistence rates applicable in the industry. As stated in one above appellant was not an employee to who such rates applied. He could therefore no competently rely on such computation to found his claim. There was therefore nothing remiss about the DA concluding that the appellant had not proven his claims. This ground also lacking in merit should fail.

Ground 3:-

The test for bias is settled See Leopard Rock Hotel Co Pvt Ltd v Wallen Construction Pvt Ltd 1994(10ZLR 255 (S). In the case at hand apart from the appellant’s mere say so there is nothing on record that demonstrates that the DA was biased against him. It was clear that the appellant’s claim had no foundation at law so it could not succeed. Its failure cannot be mutated to suggest bias on the part of the DA. This ground also lacking in merit should also fail.

In the ultimate it is clear that all the appeal grounds are devoid of merit. They should therefore fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.