Tapiwa Hombarume v K M Insurance Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H//16
HELD AT HARARE 25 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H//16

HELD AT HARARE  25 FEBRUARY 2016			CASE NO LC/H/976/15

& 18 MARCH 2016

In the matter between:

TAPIWA HOMBARUME				Appellant

And

K M INSURANCE COMPANY				Respondent

Before The Honourable E Muchawa, Judge

Appellant			In person

For Respondent		Mr M Hove (Administrations Officer)

MUCHAWA, J:

This is appeal against an arbitral award in which the arbitral award in which the arbitrator had to determine who the correct respondent was between the cited respondent and a sister company called K M Agribusiness, also known as Caprisun Agricultural Sales (Pvt) Ltd (hereinafter referred to as Caprisun).

The arbitrator found that the appellant had wrongly sued the respondent as his former employer yet his correct former employer was Caprisun and dismissed the claim.

Aggrieved, the appellant has set out the following as his grounds of appeal;

The Honourable Arbitrator erred at law to entertain by basing his f one S Chauruka alleged to represent Caprisun when the said Caprisun was not cited

The Honourable Arbitrator grossly erred by basing his award on evidence which was never produced at the hearing, that to say the award exhibit gross bias and favour for the benefit of the respondent (sic)

The Honourable Arbitrator erred by disregarding the evidence of one Innocent Naka, a former director of Caprisun at the material time testified to the effect that at no time was appellant ever employed by Caprisun

The Honourable Arbitrator erred by not recording the evidence of Innocent Naka not to consider his affidavit in his analysis

The Honourable Arbitrator erred by failing to give due weight to the fact that respondent wholly owned the said Caprisun which had, as per evidence given in the arbitration, had folded (sic)

At the hearing I dismissed the respondent’s point in limine that the appeal does not

raise questions of law as required by section 98 (10) of the Labour Act [Chapter 28:01].  This was on the basis that the appellant is arguing that the arbitrator failed to appreciate certain facts and made findings contrary to the evidence actually presented.  (See Reserve Bank of Zimbabwe v Comine Granger & Anor SC 34-01).

I will deal with the grounds of appeal in turn below.

Ground 1 - Whether the arbitrator was correct in accepting the evidence of S Chauruka

The appellant’s argument is that the evidence of S Chauruka should not have been accepted as he was a director of Caprisun which company was not a party to the proceedings.

The respondent’s position is that Mr Chauruka was the person  best placed to testify as he was the managing director which claimed to have employed the appellant.

I find that the respondent sought to discharge its burden to prove the allegation it was making that appellant had been employed by Caprisun and not by it.  This is what the law expects, one who makes a positive allegation must prove it.  (See Astra Industries v Peter Chamburuka SC 27/12).

The arbitrator was therefore correct in accepting the evidence of S Chauruka, even though Caprisun was not a party to the proceedings.

Ground 2 – Whether the arbitrator based his award on evidence which was never produced at the hearing

I asked the parties to reproduce the evidence which they put before the arbitrator.

The appellant produced an affidavit from one Innocent Naka.  I will address the contents of such affidavit later.

The respondent produced an affidavit from Simon Chauruka (annexure C), annexure A – particulars of directors and secretary/principal of Caprisun and annexure B – a letter to appellant from Caprisun acknowledging indebtedness for outstanding salaries and notice pay and proposing a payment plan.

The arbitrator concluded that the appellant had not produced any evidence to support his claim against the overwhelming evidence of the respondent.

In the circumstances, the appellant’s allegations that the arbitrator exhibited bias and favour for the respondent cannot be sustained.

Ground 3 and 4 – The evidence of Innocent Naka

It is alleged by appellant that the arbitrator disregarded the evidence of Innocent Naka who testified that at no time was the appellant at no time was the appellant ever employed by Caprisun.

I wish to reproduce the affidavit of Innocent Naka. He states;

“That according to the best of my knowledge, I don’t remember at any time Mr Hombarume reporting t any supervisor or any senior person at Caprisun for the period I was there.”

The affidavit does not state the capacity in which Innocent Naka alleges to know the facts he deposes to.  It does not state when he was there and in which capacity.  It does not state the period he is referring to.  In short, it does very little to appellant’s case and I can see why the arbitrator did not detain himself on it.

On the contrary Mr Chauruka provides detailed facts as to the relationship of the appellant with Caprisun, his capacity as managing director (a fact the appellant confirmed).  He confirmed that the appellant was engaged as security guard by Mr Bhebhe, the company secretary ( a fact confirmed by annexure A and the Appellant).

Lastly Innocent Naka’s affidavit does not clearly state whether or not the appellant was employed by the respondent.

I consequently find no merit in grounds 3 and 4 of appeal.

Ground 5 – Relationship between the Respondent and Caprisun

It is allegedly without any evidence, by the appellant that the respondent wholly owned Caprisun and that by the time of arbitration, Caprisun had failed.

On the contrary, the evidence of Mr Chauruka shows that K M Agribusiness is a division of Caprisun Agricultural Sales (Pvt) Ltd and is a company duly incorporated according to the laws of Zimbabwe.  At the material time, the respondent and Caprisun were sister companies falling under KMFS Holding and housed in the same premises.

The appellant missed that the holding company KMFS Holding is a separate legal persona possessing its own interests, rights, assets and liabilities.  By the same token, each subsidiary will also be a separate legal persona possessing its own interests, rights, assets and liabilities.  (See Zimnat Life Assurance Ltd v Dikinya SC-3-10).

Once it was established that the appellant was an employee of Caprisun, the liabilities of Caprisun could not be transferred to the respondent, even if they were sister companies, whether or not it had folded.

Accordingly the appeal is dismissed in its entirety for lack of merit.