Rousham Holdings v Jacob Sithole

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/145/14
HARARE ON 20th JANUARY, 2014
CASE NO. LC/H/728/11
AND 14 TH
JUDGMENT NO LC/H/145/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/145/14

HARARE ON 20th JANUARY, 2014			                         CASE NO. LC/H/728/11

AND 14TH MARCH 2014

In the matter between

ROUSHAM HOLDINGS			–	APPELLANT

And

JACOB SITHOLE				-	RESPONDENT

Before The Honourable E. Makamure J.

For Appellant :	Ms C. Maphosa (Legal Practitioner)

For Respondent:	Mr D. Sheshe (Legal Practitioner)

MAKAMURE J:

This is an appeal against a determination by an arbitrator. Section 98(10) of the Labour Act [Cap 28:01] (The Act) stipulates that questions of law only are raised on appeal to this Court on an appeal from a decision of an arbitrator. Further in Leopard Rock Hotel Co (Pvt) Ltd. v van Beek 2000 (1) ZLR 251 (S) the Supreme Court stated:

“A ruling by the Tribunal on damages is a ruling on fact and thus not appealable unless it can be categorized as wholly unreasonable. This may (but not must) be the situation where the Tribunal has misdirected itself on the law as to the criteria to be taken into account in assessing damages.”

In casu the Arbitrator made an award for damages. The appellant was aggrieved by that award and appealed to this Court.

The appellant is alleging gross errors and misdirection by the Arbitrator in how she arrived the amounts  which she did.

I have considered the award.It clearly shows that shewas presented with documentary evidence by the employee in all the claims that were lodged.  For example, where school fees were paid, the employee had proof that this was so. The appellant (employer) did not furnish proof to contradict the proved claims by the employee (Respondent in casu). In wording the award the arbitrator used the phrase “give the benefit of doubt to the claimant.”  For example at page 20 of the record of proceedings the following is stated:

“Also, considering that there is a cash requisition of $10.00 made by the claimant and submitted by the Respondent, the claimant is given a benefit of doubt that he is owed US$507.00 for cellphone allowance after subtracting the cellphone allowance proved to have been paid by Respondent.” (Emphasis added).

My understanding in reading the award is that in terms of what was presented, the Learned Arbitrator was able to make some computations.The Arbitrator did not, as it were, just ‘pluck a figure from the air’. (See Nyaguse v Mkwasine Estates (Pvt) Ltd 2000 (1) ZLR 571 (S).

The employee proved his claims. The employer failed to contradict the employee’s proved claims. The Arbitrator ended up using the words ‘benefit of doubt’ in view of the absence of proof to confirm assertions to the contrary. Further, in labour matters,proof is always on a balance of probabilities. In the present case the findings are purely factual based on evidence placed before the Arbitrator. I am satisfied that that the respondent discharged the onus required of him before the Arbitrator.

There is therefore no error or misdirection in the manner that the Learned Arbitrator made their findings.What this means is that the appeal is devoid of merit. The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Matsikidze & Mucheche – legal practitioners for Appellant

Chadyiwa   and Associates – legal practitioners for Respondent