Africa Gaming (Private) Limited t/a Africa Bet v Tafadzwa Tanyaradzwa & 6 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/21/2016
HARARE, 23 MARCH 2016
13 MAY 2016
CASE NO LC/MS/41/2015
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/MS/21/2016

HARARE, 23 MARCH 2016 &			              CASE NO LC/MS/41/2015

13 MAY 2016

In the matter between

AFRICA GAMING (PVT) LTD					   APPELLANT

t/a AFRICA BET

Versus

TAFADZWA TANYARADZWA &				   RESPONDENTS

6 OTHERS

Before the Honourable D L Hove J

For the Appellant	J Ruvengo (Legal Practitioner)

For the Respondent    P Shumba (Legal Practitioner)

HOVE J:

This is an appeal from the decision of an arbitrator. It was handed down on 28 April 2015.

The respondent raised an objection in limine and stated that the appeal was improperly before the court. It was filed out of time contrary to the provisions of Rule 15 (1) of the Labour Court Rules, 2006.

It was argued that the respondent attempted to serve the appellant with a copy of the award but they were unable to do so as no one was willing to sign in acknowledgement or to stamp the document. The respondent then engaged a police constable to serve. The officer managed on 20 June 2015 to serve on the manager of the respondent. Proof of such service was attached to the heads of argument marked annexure A.

It was also submitted that the senior designated agent for Masvingo region also served a manager of the respondent on 5 May 2015. Proof of such service was handed over to the court marked B. The appellants persisted with their averments that the appeal was out of time.

The respondents submitted that they only became aware of the award in July when the messenger of court attempted to attach and remove their property on 21 July 2015 and so when she filed her appeal twenty-one days had not yet lapsed.

There was a bold denial that it was not true that there had been service on the appellant on 20 June 2015 as was indicated on annexure A. no further submissions were made to substantiate the bold denial. The appellant also denied that the designated agent for Masvingo Region had served them on 5 May 2015. This was inspite of the fact that both annexures A and B clearly showed that a manager of the appellant had been served with the award first on 5 May 2015 and secondly on 20 June 2015.

Rule 15 (1) of the Rules of the labour Court provides that:

“A person wishing to appeal against any decision determination or direction referred to in section 97 (1)(a) or (b) of the Act, or on a question of law in connection with any arbitral award in terms of section 98 (10) of the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following-

Complete in three copies a notice of appeal in Form LC3; and

…”.

This shows that an appeal ought to be filed within twenty-one days from the date the appellant becomes aware of the decision it intends to appeal against.

There is proof that service was effected on 5 May 2015 on the appellant in terms of annexure B. More that twenty-one days lapsed from that date, i.e. 5 May 2015 to 20 August 2015 when the appeal was noted with the court.

Secondly there is proof that another service of the same award was brought to the appellant’s attention on 20 June 2015 and more than twenty-one days lapsed before the appeal was noted on 20 August 2015.

The court rejects the appellant’s assertion that it become aware of the award on 21 July 2015 as it is clear from the evidence submitted by the respondent that the appellant became aware of the award on 5 May 2015 and 20 June 2015 in terms of annexures A and B which are accepted by the court as representing the more probable position.

There was an attempt by the appellant’s representative to cast doubt on the authenticity of annexure B but even if one was to doubt (which I do not) that annexure B was authentic, still the appellant’s case would crumble as they still have to disprove annexure A much more substantially than by the bold assertion they presented to the court.

I do not for one moment doubt that annexure B is an authentic document, establishing the truth that the award was brought to the attention of the appellant on 5 May 2015; for what would a designated agent gain by lying to this court in this matter. He is not an interested party.

In any case it is trite law that in general, in finding facts and making inferences in a civil case, the court may go upon a more preponderance of probability, although in so doing, it does not exclude every reasonable doubt.

However, in criminal cases, every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond a reasonable doubt.

In civil matters, one may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.

See in this regard the cases of Govan v Skidmore 1952 (1) SA 732, Caps Holdings v Chikwavira SC 73-99.

Further, the law can only help the vigilant. I agree with the respondent’s representative that the appellant must be reminded of the old adage - vigilantibus non dorminintibus jura suveniunt.

See in this regard the case of Ndebele v Ncube SC 58-92.

There must also be finality to litigation. The appellant cannot ignore orders of the arbitrator as it did in casu and only act when it seems convenient to it.

In the case of Arab v Arab 1976 (2) ZLR 166 the court held that:

“It is a fundamental principle dictated by public policy that as far as possible there should be finality to litigation.”

See also Forward Kodzwa v Secretary for Health & Secretary for Public Service Commission SC 50-99.

In the result the appeal is dismissed for being improperly before the court.

Mawere & Sibanda, appellant’s legal practitioners

Mutendi & Shumba, respondent’s legal practitioners