Sucmore Investments (Pvt) Ltd v Peter Kajayi & 12 Ors

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT LC/H/220/25
HELD AT HARARE 09 JUNE 2025
CASE NO. LC/H/276/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT LC/H/220/25

HELD AT HARARE 09 JUNE 2025	CASE NO. LC/H/276/25 AND 18 JUNE 2025

IN THE MATTER BETWEEN:

SUCMORE INVESTMENTS (PVT) LTD	APPELLANT V

PETER KAJAYI	1ST RESPONDENT

And

TATENDA MAREZVA	2ND RESPONDENT

And

BYRO MAGUNEYI	3RD RESPONDENT

And

MANDY MAGUDU	4TH RESPONDENT

And

DEPHINE MUJEKI	5TH RESPONDENT

And

WILFRED GOPITO	6TH RESPONDENT

And

SARAH MUCHERIWA	7TH RESPONDENT

And

ASMINI MUKWANDA	8TH RESPONDENT

And

PARDON KAMBEWU	9TH RESPONDENT

And

CHARITY MPALA	10TH RESPONDENT

And

COSMAS MURADZIKWA	11TH RESPONDENT EGNES JARAWENA	12TH RESPONDENT

And

FRANK MUDUKUTI	13TH RESPONDENT

Before Honorable Mr. Justice L.M. Murasi

For the Appellant	Mr. M.T Mapanga

For the Respondents	Mr. T. Thondhlanga

MURASI J.,

This is an appeal against part of the determination by Arbitrator Ms. P.N Dizha.

FACTUAL BACKGROUND

The respondents were employed in various capacities, occupations, and grades by the appellant. They lodged a dispute for conciliation of alleged underpayment of wages, and non-payment of cash-in-lieu of leave, transport, and housing allowances. The matter was heard in terms of section 93 of the Labour Act [Chapter 28:01] by Mrs. F. Mutambirwa who later referred it to arbitration after the parties failed to reach a consensus. The matter was referred in terms of section 93(5) (c) of the Labour Act. Arbitration had to determine whether or not the respondents were underpaid in wages, to determine the issue of non-payment of cash in lieu of leave, to determine on the issue of non-payment of transport and housing allowance and to determine the remedies thereof. The parties tried to negotiate in order to find each other out of court. Only a few managed to settle and signed deeds of settlement. The respondents submitted that the issue of underpayment of wages was no longer an issue, but needed the issue of transport allowances, housing allowances and cash in lieu of leave to be addressed. They claimed that the appellant was paying a compound figure without a breakdown of the allowances and they were not given pay slips to show the deductions effected. The respondents argued that the US$100.00 paid was part of their wages, not a housing allowance, which is why they dropped the claim for wages.

The respondents also stated that the fact that they lived within a walkable distance does not exempt them from their transport allowance benefit. They further disputed the appellant’s claim that it would provide them transport whenever they would knock off late. They calculated the amount for transport allowance for seven claimants to a total of US$10 800 and housing allowance to a total of US$5 400.

The appellant contended that the respondents were each given US$100 for rentals though it was not specified in their pay slips, thus the claim for housing allowances should be dismissed. The appellant also claimed that the respondents were not entitled to transport allowances as they had agreed with the respondent that they would reside within the local areas near the workplace. Further, it was the appellant’s submission that the respondents would be provided with material transport when they would knock off late. The appellant submitted that it had no objection to the cash in lieu of leave claim and that the amount owed to the respondents was US$2 912.

After analyzing the submissions made by the parties, the Arbitrator determined that the respondents should be paid housing allowances for the period they worked. It was also determined that the appellant should pay transport allowances as it had failed to prove the agreement they had made with the respondents that they would stay within walkable distance from their workplaces. The grand total was calculated to an amount of US$19 112.86, payable in equal three-monthly installments with the first payment done within one month from the date of the award.

GROUNDS OF APPEAL

Appellant lodged this appeal on the following grounds:

The Honourable Arbitrator erred at law and grossly misdirected herself in finding without legal basis that the respondents were not paid housing allowance when it was clear that they were all paid housing allowances as shown on the payment schedules attached to the appellant’s response to each respondent’s claim.

The Honourable Arbitrator erred at law and grossly misdirected herself in finding without legal basis that the respondents were entitled to transport allowances when all the respondents were residing within walkable distances from their respective work places and material transport were provided by the employer from work to their respective places of residence during the night.

The Honourable Arbitrator erred at law and grossly misdirected herself when she ordered the appellant to pay the respondents in United States Dollars only instead of an equivalent amount in local currency which is unlawful and illegal.

PROCEEDINGS BEFORE THIS COURT

At the hearing, Mr. Mapanga, representing the appellant, argued that the Arbitrator reached her conclusion without taking into account the evidence provided to her. In motivating the grounds of appeal, the counsel argued that the Arbitrator failed to take into account the pay schedules provided by the appellant, stating the amounts of housing allowance and transport allowance. It was his contention that the Arbitrator grossly erred in her judgment by determining that the respondents be paid in United States Dollars only instead of an equivalent amount in local currency. The Court asked the appellant if it had provided the respondents with pay slips or any records of the payments they received. He responded that there were no pay slips provided, but only a payment schedule. Moreso, the Court sought to clarify whether the respondents had refused to be paid in an equivalent amount in local currency. In response to the Court, Mr. Mapanga indicated that the respondents had agreed to amend the award to provide for the alternative payment in the local currency

In response, Mr. Thondhlanga representing the respondents indicated his intention to abide by the papers filed of record.

THE LAW AND ANALYSIS

The key factor to consider when dealing with appeals is whether the determination made by the lower Court or tribunal can be regarded as so unreasonable and outrageous that no other tribunal, confronted with the same facts, would have reached the same conclusion. The principle has been followed for decades now as clearly outlined in Nickolas Van Hoogstraten v Tapiwa Nelomwe SC 4-20 p 7 in which the court quoted the case of Hama v National Railway of Zimbabwe 1996 (1) ZLR 664 at 670 C-D where the court pronounced:

“The general rule of the law, as regards irrationally, is that an appellate court will not interfere with the decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion”

Further, in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A, the Court provided additional perspective on this issue and presented the following key points.:

“It is not enough that the Appellate Court considers that if it had been in the position of the Primary Court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

This principle was also articulated in the case of ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S), wherein the Court held that:

“It is settled that an Appellate Court will not interfere with factual findings made by a lower Court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the Court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it or that the decision was clearly wrong.”

In consideration of the principles established by the above authorities, the question that this Court must resolve is whether the decision of the Arbitrator can be deemed so unreasonable as to justify interference by this court. I will now deal with the issues that need to be addressed.

Whether or not the respondents are entitled to housing allowances

The first ground of appeal raises the issue that the Arbitrator grossly erred at law and grossly misdirected herself in finding without legal basis that the respondents were not paid housing allowance when it was clear that they were all paid housing allowances as shown on the payment schedules. The appellant contended that there is a payment schedule attached to each respondent’s claim. In proceedings of this nature, the party making a claim or allegation bears the burden of proving their case on a balance of probabilities. In Matseketsa v The Commissioner General of Police & Anor HH 79-18 p 8, the court stated that:

“The onus lies on he who alleges. He must prove his case on a balance of probabilities. It is not for the defendant or the respondent to disprove what the plaintiff or the applicant alleges against him. That is the immutable rule of criminal or civil procedure. The applicant

failed to prove his case on balance of probabilities. His application stands on nothing. It is devoid of merit. It is, in the premise, dismissed with costs”.

Furthermore, the maxim was applied in various cases. The court in ZIMASCO v Tsvangirai & Ors

SC 12-20 p 9, GUVAVA JA stated thus:

“It is trite that “he who alleges must prove”. In the absence of such evidence, the court as the adjudicating authority cannot make its determination”.

However, it can be noted that there was no evidence presented to the Arbitrator to support the assertion that the respondents were paid housing allowances. There were no pay slips which raises the question as to how the respondents would know which amount was for housing allowances. There was no documentary evidence provided by the appellant. The Arbitrator correctly referred to the fact that it was the duty of the Appellant to keep records of what monies were paid to its employees. The reasoning of the Arbitrator is one which any reasonable tribunal would arrive at in light of the evidence placed before the tribunal. The Arbitrator’s conclusion in this regard is sound. The respondents’ assertion of not being paid housing allowances is evidently more credible than the appellant’s claim.

Whether or not the respondents are entitled to transport allowances.

With respect to the second ground of appeal, the appellant pointed out that the Arbitrator erred at law and grossly misdirected herself in finding without legal basis that the respondents were entitled to transport allowances when all the respondents were residing within walkable distances from their respective work places and material transport was provided by the employer from work to their respective places of residence during the night. The appellant based its argument in terms of Clause 15 of the Statutory Instrument 51 of 2023 for the Collective Bargaining Agreement Catering Industry which provides as follows:

15(1) “Every employer shall pay a transport allowance of US$70.00 per month to each employee for the period 1st April 2022 to the 31st December,2022, except-

Where material transport is being provided free of charge by the employer to such employee.

……..

……..

Where the employee resides within a reasonable walkable distance from his or her work place.

The statute provides that it should be a reasonable walkable distance. This therefore calls for some evidence to assist a tribunal to conclude whether there was a ‘reasonable’ walkable distance. Bald averments cannot assist any reasonable tribunal to come to a judicious decision. In casu, I note that there was no evidence placed before the Arbitrator showing the distances the Respondents had to walk to the workplace. Further, no specific dates were given showing when the Respondents were provided with transport when they knocked-off late from work. when the respondents were transported by the appellant. What Appellant has placed before the Court are bald averments. In Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, it was held as follows:

“It follows therefore that where a party makes bald assertions not backed by evidence and the same are denied by the party against whom they are made, such bald allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value.”

Whether the appellant has to pay in United States Dollars or in an equivalent amount in local currency.

The appellant claims that the Arbitrator erred at law and grossly misdirected herself when she ordered the appellant to pay the respondents in United States Dollars only, instead of an equivalent amount in local currency which is unlawful and illegal.

In Zizhou v The Taxing Officer & Anor SC 7-20 P 4, the Court stated that:

“In light of the prevailing legal position at the time the bill was taxed, its denomination in United States dollars was in contravention of the law. The first respondent therefore erred in passing under his hand a bill that contravened the law. Accordingly, and on this basis alone, the bill cannot stand. It is the settled position at law that anything done in direct conflict with a statute is a nullity”.

The court brought to light that the denomination and disbursement of money in United States Dollars was unlawful. In Chirengo v Dzirutsva & Anor LCH 98-24 p 9, KACHAMBWA J ruled that the 1st respondent would be paid in RTGS at the prevailing bank rate of the day the payment is done. Therefore, this court is at liberty to use the same discretion. It was not proper for the Arbitrator to determine that the order be carried out in USD without giving an alternative for

payment in local currency. In their notice of response, the respondents agreed that the award can be amended to provide for the alternative payment in the local currency. Therefore, the award should not be denominated in USD exclusively but should reflect that the award is payable in local currency at the prevailing bank rate of the day.

DISPOSITION

In consideration of the above, I conclude that the appeal can only succeed to the extent of amending the order to reflect that the payment can be made alternatively in local currency at the prevailing bank rate of the day. The rest of the grounds are without merit, as the findings of the Arbitrator cannot be deemed so unreasonable as to justify interference by this Court. Her conclusions were derived from the evidence and records presented to her. The grounds of appeal raised by the appellant have no merit as there was no evidence to support the claims. Therefore, the Arbitrator’s findings cannot be faulted, as the evidence, when weighed on a balance of probabilities, supports her conclusions. The appeal partially succeeds.

In the result, the Court makes the following order:

The appeal partially succeeds.

The first and second grounds of appeal are hereby dismissed for lack of merit.

The third ground of appeal partially succeeds, and the Arbitrator’s order is amended as follows:

‘Respondent is hereby ordered to pay a total of USD$19 112-86 to the Claimants which amount shall be paid at the prevailing rate of exchange on the date of payment.’

Each party to meet its own costs.

Mapfidza & Rutsito Legal Practitioners, Appellant’s Legal Practitioners

Thondhlanga & Associates, Respondents’ Legal Practitioners