Trust ME Security V Evernice Kavhu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/427/16
HELD AT HARARE 6TH JULY 2016
LC/H/167/16
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IN THE LABOUR COURT OF ZIMBABWE		                    JUDGMENT NO LC/H/427/16

HELD AT HARARE 6TH JULY 2016				       LC/H/167/16

& 22 JULY 2016

In the matter between:-

TRUST ME SECURITY					Appellant

And

EVERNICE KAVHU					Respondent

Before The Honourable Muchawa, J

For Appellant			C K Mutevhe (Legal Practitioner)

For Respondent		Ms R Gasva (Trade Unionist)

RULING

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To borrow from the respondent, it is trite law that before reaching any finding, the court or tribunal must consider all the facts and this must be shown to be done.

Unfortunately in the case before me, it is not clear how the arbitrator reached the conclusion that the respondent had not signed the full and final settlement agreement.

The appellant’s submissions before the arbitrator on p 27 of record raised same point in limine for the two claimants before the arbitrator, that they had already been paid in full and final settlement in terms of agreements signed.

In its replication on p 31 of the record, the respondent and other claimant denied having signed any full and final settlement agreements.

That was the issue to be resolved by the arbitrator.  Curiously he found that the 2nd claimant had signed a full and final settlement agreement but made a contrary finding for the respondent without explaining the basis for such a finding.

In that the arbitrator erred.

He also further erred in not determining the preliminary point relating to prescription.

It has been held by the Supreme Court that a court should determine any preliminary point raised GMB v Muchero SC 59/07 & Heywood Investments t/a GDC Hauliers v Zakeo SC 32/13.

Ground of appeal 1 therefore succeeds.

As properly stated by the appellant, a party alleging a fact has the burden of proof See Astra Industries Ltd v Chamburuka SC 258/11.  Arbitrators are in the habit of wrongly using S 125 of the Labour Act to erroneously shift the burden of proof as stated in First Mutual Life Ltd v Muzivi SC 62-03.  The arbitrator erred in the manner he treated the question of the burden of proof and used a wrong approach.

Ground 3 and 4 of appeal would depend on the first two grounds of appeal.

Accordingly the arbitral award of arbitrator M Dangarembizi is set aside as it relates to the respondent.

The matter is remitted back to the arbitrator to properly determine the preliminary points raised, first, then the terms of reference before him, if necessary in accordance with the law.

Muvingi & Mugadza, appellant’s legal practitioners