Jacob Pistorius v Misheck Kwete & 139 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/462/14
HELD IN HARARE, 4TH JULY, 2014
CASE NO. LC/H/REV/27/14
AND 18TH JULY 2014
JUDGMENT NO. LC/H/462/14
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IN THE LABOUR COURT OF ZIMBABWE 	          JUDGMENT NO. LC/H/462/14

HELD IN HARARE, 4TH JULY, 2014                             CASE NO. LC/H/REV/27/14

AND 18TH JULY 2014

JACOB PISTORIUS			        			APPLICANT

MISHECK KWETE & 139 OTHERS			RESPONDENTS

Before The Honourable G. Musariri:	Judge

For Applicant :	Mr P.C. Paul, Attorney

For Respondent:  	Mr D. Chitendeka , Attorney

MUSARIRI, G:

On 24th March 2014 at Harare the Honourable B. Mudiwa made an arbitration award. Amongst other things he declared that Applicant qualified as an employer for Ndiri Farm. Applicant then applied to this Court for a review of that portion of the award. Respondents opposed the application.

The arbitration award cited the parties as Ndiri Farm Workers on one hand and Ndiri Farm on the other. Applicant’s case is summarised in Applicant’s submissions as follows,

“In so far as Applicant is concerned there were two matters in dispute which required evidence to be led. The first is whether or not Applicant was properly before the Arbitration, Tribunal, Applicant contended that he was unaware of the dispute until he was summoned to appear before the arbitrator and that he had not received any invitation to attend any conciliation exercise before either the Ministry of Labour or the Industrial Council. The second issue is whether or not he was an “employer” as defined in the (sic) Labour Relations Act.  It is Appellant’s position that no evidence at all was heard on these two issues and the documentation submitted to the Court supports this position. In the circumstances the matter should be remitted back to the Arbitrator.”

On the other hand Respondents insisted that Applicant was their employer. On this point the arbitrator ruled thus,

“2.	Both Louis Greyling and J. Pistorious (sic) qualifies to be the employers for Ndiri Farm as per definition of the employer in the Act.”

It is clear that by “Act” the arbitrator meant the Labour Act [Chapter 28:01] in terms of which his appointment was made. Section 2 of the Act defines the word “employer” as;

“any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him and includes

The manager, agent or representative of such person who is in charge or control of the work upon which such other person is employer:”  (The underlining for emphasis is mine)

Per this definition of “employer”, Applicant may or may not be an employer as the manager in charge or control of Respondents. He denied being the employer. Respondents insisted he was their employer. This was a factual question to be determined by the evidence.

Applicant challenged the arbitrator to hear evidence on this point. Apparently the arbitrator did not do so. His conclusion that Applicant was an employer is thus not supported by the evidence.

The claim that Applicant did not take part in the conciliation of the matter is neither here nor there. He was not cited as a party though he attended parts of the proceedings. He was well represented and he was able to make his point about his connexion with Ndiri Farm.

In the circumstances I consider it fair and reasonable to remit the matter back to the arbitrator for a hearing on whether or not Applicant was an employer as defined by the Act.

Wherefore it is ordered that;

The matter is remitted back to the arbitrator for a hearing as to whether Applicant qualified as employer in terms of Section 2 of the Labour Act [Chapter 28:01]; and

Each party shall bear its own costs.

G. Musariri

J-U-D-G-E