Tinashe Rwafa v Dickson Makumbe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/22/2016
MASVINGO, 23 MARCH 2016 &
CASE NO LC/MS/10/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/MS/22/2016

MASVINGO, 23 MARCH 2016 &			             CASE NO LC/MS/10/2015

13 MAY 2016

In the matter between

TINASHE RWAFA							APPELLANT

Versus

DICKSON MAKUMBE						RESPONDENT

Before the Honourable D L Hove J

For the Appellant      J Ruvengo  (Legal Practitioner)

For the Respondent   Ms L R Kagurabadza (Legal Practitioner)

HOVE J:

This is an appeal against an arbitral award.

The appellant alleges that he was employed at the respondent’s home stead for a period of about five years but he was not paid. He is suing for his arrear salaries in the sum of $4 700-00.

The arbitrator found that there was never an employer/employee relationship after analysing the facts placed before him. He dismissed the appellant’s claim. The appellant was aggrieved, he appealed to this court and the grounds of appeal are that:

The arbitrator erred in dismissing the appellant’s claim against the respondent by failing to take into account the fact that an employer/employee relationship existed between the appellant and the respondent and that the appellant and respondent orally agreed on the terms and conditions of employment.

The arbitrator erred in disregarding the fact that the respondent had a legal duty to pay the appellant his salaries due and owing from date of commencement of employment to date of termination.

The arbitrator erred in taking into account the fact that the two other persons alleged to be brothers to the appellant were also employees of the respondent just like the appellant.

The arbitrator fatally erred in considering the respondent’s version that at one point the respondent sent appellant to a college namely Perseverance College, in Gutu to study mechanics yet that college does not provide such services.

The appellant was asked whether these grounds of appeal were raising any point of law.

His representative responded that yes the grounds of appeal did raise a point of law as the error by the arbitrator was a grave one therefore it amounted to a point of law.

It is true that an appellant can in law appeal against arbitral findings on issues of facts where the allegation is made that the misdirection in the facts were so grossly irrational that no sensible person applying his or her mind thereto could have arrived at such a conclusion.

In the case of National Foods Limited v Mugadza SC 105-95 the court held that:

“It is true that this court has jurisdiction to hear an appeal from the tribunal on a point of law. But clearly if there is a serious misdirection on the fact it amounts to a misdirection in law.”

An allegation must however be made in the grounds of appeal themselves that there has been such a misdirection.

The court stated in Reserve Bank of Zimbabwe v Carrine Granger & Anor SC 34-2001:

“An appeal to this court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so grossly unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision.”

See Sable Chemical Industries v Easterbrook 2010 ZLR (2) 342.

In casu there has been no such allegation in the grounds of appeal.

What is and what is not a point of law has been discussed by the courts in the case of Central African Building Socient v Rangise & Ors SC 112-04. In that case the court stated that:

“A question of law is used in three distinct though related senses. First it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.

Second, it means a question as to what the law is. Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.

The third distinction is not relevant for our current discourse.”

In casu it cannot be said that the question that the appellant is bringing before the court for argument and determination is what the true rule of law is on this particular matter. It is not disputed that in law there can be oral contracts of employment. It is also not disputed that employees are in terms of law entitled to be remunerated a fair wage or an agreed wage for the services that they render. These are not the issues for determination. What is for determination is factual and it is whether or not the appellant was employed by the respondent. The arbitrator found that he wasn’t and this is what is being challenged and being sought to be brought before the court for determination.

This clearly is not a question of law but of fact. As such, the appeal itself is contrary to the provisions of section 89 (10) of the Labour Act [Chapter 28:01].

In the premises the appeal must be dismissed.

Order

The appeal be and is hereby dismissed.

There is no order as to costs.

Tafirei & Chikwari Law Firm, appellant’s legal practitioners

Bheredende Law Chambers, respondent’s legal practitioners