Joseph Kanengoni v Tarcon (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/794/2016
HARARE, 7 OCTOBER 2016 &
CASE NO LC/H/LRA/148/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/794/2016

HARARE, 7 OCTOBER 2016 &				CASE NO LC/H/LRA/148/2016

16 DECEMBER 2016

In the matter between

JOSEPH KANENGONI							APPLICANT

Versus

TARCON (PVT) LTD							RESPONDENT

Before the Honourable Maxwell J

The Applicant in Person

For the Respondent	A F Majachani (Legal Practitioner)

MAXWELL J:

This is an application for the confirmation of a ruling by the applicant in terms of section 93 (5a) (a) and (b) of the Labour Act [Chapter 28:01] as amended.

The applicant presided over a matter between Simbarashe Munemo and seven others and the respondent. The matter involved the non-payment of arrear wages, non-payment of terminal benefits, non-remittance of NEC pension contributios and CIMAS medical aid contributions. The applicant ordered the respondent to pay the claimants a total of $40 678-64 before the expiry of thirty days from 31 May 2016 the date the ruling was made. The applicant also pointed out that the unremitted NEC contributions were to be recovered by NEC Construction. The respondent did not comply with the ruling and the applicant filed this application.

The respondent opposed the application and stated that no evidence was produced before the applicant that it had not been paying for CIMAS medical aid contributions. The respondent also challenged the claimants’ entitlement to the service pay at the rate of one month’s salary for every two years worked on the basis that the dispute arose before the Labour Amendment Act of 2015 was enacted. The respondent prayed for the dismissal of the claims in relation to its response.

At the hearing of the matter the applicant conceded that no evidence had been placed before him on the medical aid contributions. It is trite that he who alleges must prove. See Astra Industries v Chamburuka SC 27-12; Nyahondo v Hokonya 1997 ( 2) ZLR 457 at 459. The ruling is therefore subject to variation on that aspect. Counsel for the respondent also conceded that the challenge to the applicability of the service pay as set out in the Labour Amendment Act of 2015 was misplaced.

The table in paragraph 1 of the ruling shows that Godfrey Munyaradzi and Seto Chibwana were awarded CIMAS contributions as stated above, they are not entitled to them.

Consequently the amount awarded to each of them will be reduced by the amount that was for CIMAS contributions. For Godrey Munyaradzi, the total awarded will be reduced by $225-00 whilst that awarded to Seto Chibwana will be reduced by $150-00. Godfrey Munyaradzi’s total will be $7070-39 whilst that for Seto Chibwana will be $1 255-88.

Having taken into consideration the concessions by both parties, the ruling is confirmed with amendments. The following order is therefore appropriate:

The ruling by the applicant be and is hereby confirmed with the following amendments on the table in paragraph 1.

The column entitled “CIMAS CONTRIBUTIONS” be and is hereby deleted as claimants are not entitled to any.

The total due to Godfrey Munyaradzi be and is hereby reduced to $7 070-39.

The total due to Seto Chibwana be and is hereby reduced to $1 255-88.

The grand total due to the claimants be and is hereby reduced to $40 303-64.

The respondent is to pay the total amount of $40 303-64 after thirty days of this order.

The respondent is to pay $46-82 as costs of suit within seven days of this order.

Mberi Chimwamurombe Legal Practice, respondent’s legal practitioners