Mhondoro Ngezi Rural District Council v Zimbabwe Rural District Council Workers Union

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE
JUDGMENT NO. LC/H/392/25
CASE NO. LC/H/721/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT NO. LC/H/392/25

CASE NO.	LC/H/721/25

IN THE MATTER BETWEEN:

MHONDORO NGEZI RURAL DISTRICT COUNCIL	APPELLANT

Versus

ZIMBABWE RURAL DISTRICT COUNCIL

WORKERS UNION	RESPONDENT

29th SEPTEMBER 2025 and 17TH OCTOBER 2025 BEFORE THE HONOURABLE GONESI J

For the Appellant:	T.J Mafongoya

For the Respondent:	T.E Mudzuri

GONESI J:

THE APPEAL

This is an appeal against the decision of an Arbitrator filed in terms of Rule 19(1) 0f the Labour Court Act, 2017. Appellant’s grounds of appeal are as follows:

“1. The arbitrator grossly misdirected at law by failing to dismiss the respondent’s (claimants aquo’s) claim despite arriving at a conclusion that:

The respondent (claimant a quo) had not satisfied the tribunal by submitting the actual names of its members in question.

The respondent (claimant a quo) had failed to prove actual payments made.

The respondent (claimant a quo) had failed to discharge its onus and burden of proof on a balance of probabilities.

By failing to dismiss the respondent’s (claimants a quo’s) claim due to lack of evidence, the arbitrator grossly misdirected at law, consequently mero mutu creating new terms of reference.(sic)

The arbitrator grossly misdirected at law by making a finding that trade union dues should be remitted in the currency that they were deducted, despite the existence of section 4 of the Collective Bargaining Agreement of the Rural District Council 2024,which permitted remittal payments on the official prevailing rate on deduction date.

A fortiori, the arbitrator erred at law by granting an order to produce names and to produce variances which order had not been sought by either party.

The arbitrator erred at law by ignoring evidence that established appellant (respondent aquo) having paid alleged union dues in full.

RELIEF SOUGHT

WHEREFORE, the appellant prays that the appeal succeeds with costs and the arbitral award be set aside and be substituted with;

“ 1. The claimant’s claim for alleged union dues for 2024 which alleged 2024 dues having been paid in full, is hereby dismissed.”

FACTUAL BACKGROUND

The parties appeared before an arbitrator whose terms of reference were:

Alleged non payment of union dues

Whether or not the respondent owes the claimant union dues for the period December 2023 to date.

Proceedings before the Arbitrator.

The (Union (respondent herein) claimed that the (Council (appellant herein) owed a sum of USD 34 043, 28 as union dues arrears. On the other hand the (Council (appellant herein) disputed the claim and alleged that the deductions were in local currency and as such the attempt by the claimant to quantify deductions which were in RTGS and ZIG and convert them to USD currency was illegal. The Council submitted that the deducted amount in the currency in which it was deducted was the amount remitted to the claimant. The Council submitted further that their calculations revealed that they owed ZIG 53 025.35, an amount which was fully paid as evidenced by the proof of payment.

The arbitrator awarded as follows:

“It is clear that the respondent is owing the applicant outstanding union

dues.

The applicant should produce the actual names of its members to the respondent for the period in question.

The respondent is ordered to produce the actual deductions which were effected for the employees concerned for the period in question.

The respondent is ordered to pay the actual variance within 31days of receipt of this award.

Failure to abide by the arbitral award, the arbitrator will quantify the arrears in their actual currencies.

Payments which were made during these proceedings should be

deducted on the union dues.”

PROCEEDINGS BEFORE THIS COURT

At the outset of the proceedings respondent took three preliminary points. The first point was that the appeal was non compliant with Rule 19 of this Honourable Court’s rules. Mr Mudzuri argued that the notice of appeal did not inform the respondent about the period within which they ought to respond to the appeal and that being the case, the appeal was fatally defective and ought to be struck off the roll.

Secondly, counsel submitted that the appeal was premature in that parties had been directed to negotiate quantification. Mr Mudzuri argued that the court could not be invited to hear an appeal as domestic remedies in the form of quantification had not been exhausted. He argued further that the award was not final, it was an interlocutory order which required further action in the form of quantification to be taken.

Mr Mudzuri argued further that the grounds of appeal were vague and embarrassing. In actual fact, the grounds of appeal attacked the factual findings and not the legal findings, so argued counsel. He submitted that the grounds of appeal were not a challenge on questions of law but a disgruntlement on factual findings. Respondent was being forced to defend a nullity when parties could simply have gone back to the arbitrator for quantification submitted Mr Mudzuri. Counsel therefore prayed for the matter to be struck off the roll.

In response, Mr Mafongoya prayed for the preliminary points to be dismissed as they were not dispositive of the appeal. It was counsel’s submission that the court must not be entangled in legal technicalities but must look at substantial compliance. Counsel submitted that the form was substantially compliant and as such ought to be accepted by the court.

On the appeal being prematurely before the court, counsel submitted that in terms of section 98(10) of the Labour Court,

“An appeal on a question of law shall lie to the labour court from

“any decision” of an arbitrator appointed in terms of this section.”

Parties are given power to appeal if they are not happy with the decision of an arbitrator. A party cannot acquiesce if they are not happy with a finding of a tribunal or court, they register their displeasure by noting an appeal as in casu, submitted counsel.

Mr Mafongoya, on grounds of appeal being defective submitted that the grounds of appeal were proper in that they were attacking the finding by the arbitrator, who despite the evidence before him, ignored the evidence and made a finding unsupported by evidence.

Counsel submitted further that the respondent was served with the notice of appeal and timely responded and as such there was no prejudice. Respondent failed to illustrate the prejudice suffered, so argued counsel. Mr Mafongoya further prayed for the court to condone the minor infraction.

In deciding on the preliminary points raised, I will take a cue from the decision of the supreme court in Edmore Taperesu Mazambani v International trading Company (Private)Limited and Anor SC 88/20 where MATHONSI JA observed thus,

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”

In Telecel Zimbabwe (Pvt)Ltd v Potraz & Ors HH446/15, the court held,

“...A preliminary point should only be taken where firstly it is

meritable and secondly, it is likely to dispose of the matter…”

It is this court’s finding that the preliminary points raised by the respondent do not have the effect of disposing of the matter and as such they will be dismissed. Though it is accepted that the notice of appeal did not provide for the time lines within which the respondent must file the notice of response, nevertheless, respondent timeously filed the notice of response. Respondent never alleged prejudice and further they never showed any prejudice. The court will lean towards dealing with the matter on the merits and will not allow itself to be swayed by technicalities which do not have the effect of disposing of the matter.

The grounds of appeal do raise points of law in that the appellant alleged that the arbitrator in coming up with the award did not consider the evidence that was before him and such a misdirection is so gross as to amount to an error at law.

Submissions on the merits

APPELLANT’S CASE

In motivating the appeal, Mr Mafongoya submitted that it was improper for the arbitrator in one breath to admit that he had insufficient evidence and on the other to say the appellant was liable. Counsel contended that the respondent had the onus to prove their case before the arbitrator. It was improper for the arbitrator to issue an order before resolving the matter between the parties. The absence of evidence must have led to the dismissal of the claim, so the argued counsel.

Mr Mafongoya submitted that the honourable arbitrator acknowledged that he did not have the actual names and figures and as such, since the claim was anchored on names and figures, the absence of such essential evidence should have led to the outright dismissal of the case. The respondent had failed to prove their case on a balance of probabilities, so argued counsel.

In addressing the second and fourth ground of appeal, counsel argued that the arbitrator misdirected by creating terms of reference and making a conclusion without hearing parties. It was counsel’s argument that the order by the arbitrator was incompetent as it had been arrived at without any input from the parties. The arbitrator was bound by the terms of reference and it was improper for him to go on a frolic of his own, so argued counsel.

Mr Mafongoya submitted further that the arbitrator gave an order which was never sought by any of the parties. The arbitrator must have invited evidence from the parties first before making a decision submitted counsel.

In motivating the third ground of appeal, counsel submitted that the findings by the arbitrator on deductions and remittances was contrary to the law in that whilst the CBA provided for deductions in United State Dollars, it provided for remittances using the local currency at the interbank rate. He argued that a finding contrary to the law is a misdirection.

It was counsel’s submission in relation to the fifth ground of appeal that the arbitrator fell into error by failing to consider the evidence presented which showed that the Appellant had discharged its liability.

In the papers filed of record, counsel contended that the findings by the arbitrator showed that he did not have sufficient evidence to satisfy him that the respondent was owed. Counsel submitted that if the arbitrator had issues to be addressed, he could not proceed to make an order on the issue ,like ordering the parties to submit further names and pleadings without seeking any input from the parties. This was grossly wrong ,argued counsel. In his submissions he relied on the

case of Nzara & 3 others v Kashumba N.O & 3 others SC18/18 where it was held “The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court’s mind but has not been addressed by them in submissions from the bar, the court is at liberty to put questions to the parties and ask them to make submissions on the matter”. Appellant argued that the arbitrator ignored the evidence in the form of proof of payment and made a finding that the appellant owed the respondent, a finding that was contrary to the evidence presented before the arbitrator.

RESPONDENT’S CASE

In response to the first ground of appeal, Mr Mudzuri argued that for the appellant to allege lack of evidence would be highly misleading. Counsel submitted that the arbitrator had the evidence in the form of stop orders and schedules. The appellant had raised new issues during arbitration and the arbitrator wanted clarification in the form of actual names and figures paid ,submitted counsel. Mr Mudzuri contended that the arbitrator directed parties to give further evidence in the form of actual names and figures. Counsel submitted further that in one breath, the appellant disputed liability and in the other alleged having made payments in full and urged the court to disregard the appeal as the appellant was blowing hot and cold.

In addressing the second and fourth grounds of appeal, Mr Mudzuri submitted that it was the issue of liability that was dealt with by the arbitrator. Counsel argued that the appellant had a duty to deduct union dues and remit them to the respondent. He further contended that the arbitrator had not yet discharged his mandate and hence that is why he sought for exact deductions and names of the

employees for the period in question. Counsel argued that the arbitrator was not yet functus and he had dealt with term of reference one and in order for him to tackle term of reference two, that is when he asked parties to go and reconcile figures and if there was no agreement, parties could still come back to him for quantification.

In his response to the third ground of appeal, counsel submitted that the arbitrator was correct in interpreting the CBA to mean that the union dues were to be deducted using the same ratios as salaries.

Pertaining to the fifth ground of appeal, Mr Mudzuri submitted that the arbitrator was correct in making a finding that the appellant was liable. Counsel argued that the appellant had not submitted any evidence to show that he had been exempted from remitting union dues. He submitted further that the arbitrator was not advised of the rate used in the conversion to warrant a conclusion that what was paid by the appellant was enough. It was not clear the periods the payment related to and as such it was improper for the appellant to invite the court to interfere in proceedings through the current appeal, submitted counsel. Appellant must have waited for quantification and if they were not happy with the quantification, only then could they approach this court on appeal, so argued counsel.

It was counsel’s argument that the relief being sought by the appellant could not stand considering that the appellant had admitted to liability by making payments .

In the papers filed of record ,respondent maintained that the present

appeal is meritless as the arbitrator’s findings were sound in logic

and hence could not be impugned. It was respondent’s contention that by filing the present appeal, appellant sought a rehearing of the matter , notwithstanding that appellant had admitted to owing union dues. The respondent submitted further that it was improper for the appellant to file an appeal against an award that had not yet been quantified. Counsel prayed for the appeal to be dismissed and the parties go back for quantification as directed by the arbitrator.

ISSUES FOR DETERMINATION

The grounds of appeal raise the following cardinal issues for determination:

Whether or not there was evidence on a balance of probabilities to prove the liability of the appellant.

Whether or not the arbitrator was correct in making a finding that union dues must be remitted in the currency they were deducted.

ANALYSIS OF EVIDENCE

WHETHER	OR	NOT	THERE	WAS	EVIDENCE	ON	A	BALANCE	OF PROBABILITIES TO PROVE THE LIABILITY OF THE APPELLANT .

It is trite law that in labour matters, the standard of proof is proof on a balance of probabilities.The standard of proof is the quality of evidence required to discharge the onus.

In the case of Dube v Murehwa and Anor SC 448/19, it was stated that,

It is settled in our jurisdiction that the standard of proof in civil matters is “a balance of probabilities.” In ZESA v Dera 1998(1) ZLR 500, the court held that in a civil case the standard of proof is on the balance of probabilities. It stated that the reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary

concern is to do justice to each party, and the test for that justice is to balance their competing claims. MCNALLY JA stated at 504B:

“So in a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the ‘balance of probability’ test.”

Also in Bruce N. O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R), proof on a balance of probabilities was explained in the following manner:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

In casu it is clear that the parties appeared before the arbitrator for a resolution of the dispute involving outstanding union dues. During the proceedings, appellant made payments and attached the proof. A schedule of names and payments deducted was produced. It is not in dispute that even after receiving such evidence, the arbitrator in his award ordered the appellant to produce actual deductions and the names of the concerned employees for the period in question. What can be gleaned from this order is that the evidence that was presented to him was not enough. Had the evidence been sufficient, the arbitrator would have made an award stating the actual amount owed if any. The request for further evidence is proof that the evidence before him was inadequate. The question which begs for an answer then is faced with such a case, what was the best course of action to take? In my view, the arbitrator must have sought for evidence and clarifications before giving an award.

I am fortified in this reasoning by the case of Nzara & 3 Others v Kashumba

N.O. & 3 Ors SC18/18 where it was held that;

“The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court’s mind but has not been addressed by

them in submissions from the bar, the court is at liberty to put the question

to the parties and ask them to make submissions on the matter.”

The parties are in agreement that the evidence was inadequate. Where there seems to be a dispute is on what could have been the best course of action to take in the circumstances. Whilst the appellant argued that faced with that situation, the arbitrator was supposed to dismiss the claim, respondent is of the view that parties were supposed to proceed for quantification, and only then after the figures had been reconciled a challenge of the decision by the arbitrator could then be made. In fact, the respondent alleged that this was an interim award by the arbitrator and it was improper for the appellant to have filed the present appeal. Appellant argued that they could not acquiesce to a judgment and decide to appeal at a later stage. I am inclined to agree with the submissions by appellant in that it is trite law that once a party has accepted an order made, it loses its right to appeal. Had the appellant proceeded to quantification, they could not seek to challenge the finding of the arbitrator at a later stage.

In the case of Cohen v Cohen 1980 ZLR 286(S) it was held:

“It is an established principle of our law that a person who has acquiesced a judgment cannot thereafter appeal against it…”

The respondent’s argument that the only issue that could be taken up on appeal is liability and that appellant could not escape the finalisation of the arbitration proceedings through quantification does not find support from this court since the aspect of quantification is anchored on the finding of liability

.Considering that appellant had made payments during the arbitration proceedings, what evidence was there to prove that the appellant was still liable? If one considers the gaps in the case, the prudent step to have been taken by the arbitrator was to seek for further evidence and clarifications from the parties before coming up with a decision. The arbitrator having failed to do so amounted to a gross misdirection and his decision ought to be vacated. It is trite law that a misdirection of fact is either a failure to appreciate a fact at

all, or a finding of fact that is contrary to the evidence actually presented. See RBZ v Granger & Anor SC 34/01.The arbitrator made a finding that was contrary to the evidence presented

The terms of reference before the arbitrator were as follows:

Alleged non payment of union dues

Whether or not the respondent owes the claimant union dues for the period December 2023 to date.

In Edmore Mapondera and 55 others v Freda Rebecca Gold Mine Holdings Ltd SC565/19, the court observed thus

“It is trite that an arbitrator is bound by the given terms of reference. He

has no jurisdiction outside the terms of reference.”

A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties. The arbitrator was duty bound to assess the facts and apply the law to enable him to come up with an informed decision.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S) AT PAGE 62E-F GWAUNZA JA said:

“The appellant argues, in the light of all this, that the action of the court a quo in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite. I am, for the reasons outlined below, persuaded by this argument … The misdirection on the part of the court a quo is left in no doubt. It is my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court. The determination by the court a quo, of matters not placed before it, goes against a litigant’s right to be heard and this view is supported in the fourth edition of Judicial Review of Administrative Action by J. M. Evans at pages 157-158 where it was highlighted that the principle that “no man is to be judged unheard” is an age-old view adopted from the ancient Greeks. This principle has been adopted in our system under the audi alteram partem rule. Therefore, the fact that the respondents are

not taking issue with the court’s mero motu decision is, neither here nor there. This irregularity militates against the validity of parts of the judgment of the court a quo. A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”

In casu, the parties were never invited to address the arbitrator on the issue of actual names and actual deductions. This is an error that can be corrected by allowing the present appeal.

WHETHER OR NOT THE ARBITRATOR WAS CORRECT IN MAKING A FINDING THAT UNION DUES MUST BE REMITTED IN THE CURRENCY THEY WERE DEDUCTED.

The CBA provides thus “NEC and Trade Union deductions and remittances shall be made using the currency used to pay the salaries at the same ratios used for the payments. Payments to the NEC and Trade Union in RTGS shall be made using the RBZ auction rate obtaining on the date of such payments”.

Section 4 of the Collective Bargaining Agreement therefore allowed for a conversion and payment to be made in RTGs/ZIG. In this case the evidence shows that appellant was making deductions and remitting in local currency therefore, the attempt by the respondent to quantify deductions which were in RTGS and ZIG and, then converting them to USD is not logical or legal. The deducted amount in RTGS and ZIG was remitted to the Respondent. There was no justification for the arbitrator to make a conclusion that after the appellants had made the payments they still owed the respondent. In the case of Mhondoro Ngezi v ZRDCWU LC/H/1257/24, the Court held:

“The arbitrator further erred by accepting a unilateral conversion of RTGS amounts into USD without judicial sanction or evidentiary support. No proof was furnished to establish the applicable exchange rate, date of conversion, or mutual consent to such conversion. The appellant had deducted and remitted union dues in RTGS, consistent with the statutory and payroll framework in place at the time. Under the principle of

currency nominalism, obligations are to be discharged in the currency in which they are incurred unless parties expressly agree otherwise. As held in Makwindi Oil Procurement (Pvt) Ltd v NOCZIM 1988 (2) ZLR 482(SC), the mere instability of the RTGS does not justify its conversion to USD in the absence of a binding agreement or court order. The arbitrator’s finding in this regard was therefore a misdirection in law.”

It is therefore clear that the finding by the arbitrator is contrary to law and such constituted a misdirection entailing the findings to be set aside.

DISPOSITION

The appeal be and is hereby allowed.

The award by the arbitrator be and is hereby set aside in its entirety and be substituted with the following order:

“The claim for union dues for the period December 2023 to December

2024 be and is hereby dismissed for lack of merit”

There is no order as to costs.

Mafongoya & Matapura Law Practice, appellants’ legal practitioners

Lawman Law chambers, respondent’s legal practitioner