Lobels Holdings (Pvt) Ltd v David Chiweza

### Preamble
Judgment No. SC75/18
1
Civil Appeal No. SC 657/16
REPORTABLE (68)
Civil Appeal No. SC 657/16
---------




REPORTABLE     (68)

LOBELS     HOLDINGS     (PVT)     LTD

v

DAVID     CHIWEZA

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GOWORA JA & MAVANGIRA JA

HARARE, JULY 18, 2017 &   NOVEMBER 22, 2018.

T Zhuwarara with N Chimuka, for the Appellant

P Musekiwa, for the Respondent

GOWORA JA:  On 1 September 2010 the respondent was employed as the resident director of the appellant in terms of an executive employment agreement. In terms of the contract the respondent, as representative of the Board of Directors, was responsible for the supervision and direction of policy on a daily basis. In addition, he was mandated to represent the company in relation to the appellant’s stakeholders. Some of his specified duties, in terms of the employment agreement, were to disseminate Board decisions to management, overseeing the implementation of Board decisions and providing oversight over operational and administrative issues that impinged on policy and the strategic direction of the company. He also supervised all executive management regarding the implementation of the strategy and policy for the turnaround of the company.

The contract of employment was documented to subsist for as long as it was necessary for the completion of the work of the company by the respondent and was capable of termination by the Board of Directors at their pleasure.  Upon the expiry of the contract the respondent was entitled to a gratuity calculated by the number of months served up to a maximum of twelve months of his basic salary. The agreement also had a termination clause which required sixty days’ notice which could be waived upon the agreement of the parties.

In terms of the contract of employment, the respondent was entitled to a basic salary of US$ 10 000 per month, full medical aid assistance for him and three dependents, a pension allowance of 10% of his basic salary, an annual holiday of up to thirty working days, an executive company vehicle and in the absence of the vehicle, maintenance costs for his personal vehicle, fuel allowance of US$ 500 per month as well as a monthly allowance of USD 1000 for the use of his own vehicle. Also included, was a cell phone allowance of US$500 per month.

The respondent left the employment of the appellant sometime in 2012. The date of his departure is contested, with the respondent contending that he left employment on 30 July 2012 after completing twenty-three months of employment. This stance was grounded in the provision contained in the Scheme of arrangement which provided for the resignation of the directors upon   sanctioning of the scheme of arrangement by the parties.

The appellant, on the other hand, argues that the respondent left its employment on 31 January 2012 when he requested for payment of his terminal benefits through an email. This email is not part of the record before this court. What is on record is a letter from the respondent requesting to be paid his ‘entitlements’ on 1 October 2013. The gist of the letter appears to be that the respondent had made a claim even before this date and the letter was written as a follow up on the issue. The respondent claimed that he was owed US$ 277 000 as outstanding salaries and benefits due to him.

The appellant responded to his request for outstanding salaries and allowances on 24 October 2013 by acknowledging that it owed him US$ 113 780. It stated that it had paid him US$ 1 500 in part settlement to him and undertook to issue him a debenture for ‘the balance of US$112 280’.

The respondent referred the dispute between the parties for conciliation on 24 June 2014.

By this time, the appellant had been purchased by a consortium called Altiwave under a scheme of arrangement. In terms of the scheme of arrangement, the identified concurrent creditors included employees of the appellant. The settlement of indebtedness to employee creditors was through a payment of cash up to a cap of US$ 1 500 for each person. The balance of the employee creditors’ claims would be paid through the issue of debentures. The scheme of arrangement acknowledged a claim by the respondent for arrear salaries which was stated to be ‘still to be verified and treated in the same manner as the employee creditors of Lobels Bread (Private) Ltd’. The scheme of arrangement was signed in May 2012. It also provided, as stated above, that the directors of the appellant would resign from their respective offices as directors and as employees on the date the scheme would be sanctioned.

Conciliation yielded a certificate of no settlement. The dispute was referred to arbitration in terms of s 93 of the Labour Act with the following terms of reference:

Whether or not the claimant’s contract of employment was valid.

Whether or not Lobels has paid the claimant full salaries and terminal benefits in accordance with the contract.

Whether or not safeguards for moving the claimant from his own business were taken into account.

Whether or not the purchaser of the company, Lobels has the authority to vary the claimant’s contract and the values of what is owed.

Determine the appropriate remedy in the matter.

The appellant filed a request for further particulars in relation to the claim in the sum of US$ 7 000 for maintenance and repair of the respondent’s motor vehicle. It also raised a question as to whether or not the respondent had not been paid anything during the subsistence of his contract of employment. It also appears that the appellant raised the issue of prescription contending that the respondent’s claim had prescribed. The opposing papers raising this issue were not placed on record before this court and this issue is addressed in the respondent’s replication to these opposing papers. The issue appears common cause between the parties.

One of the live disputes before the arbitrator was when the respondent’s employment was terminated. The appellant alleged that it was in January 2012 when the respondent had made a request for terminal benefits while the respondent argued that it was after the finalisation of the scheme of arrangement.

The arbitrator dismissed the first, third and fourth terms of reference as being irrelevant. The arbitrator found that the dispute had arisen in October 2013 when the appellant indicated to the respondent its unwillingness to pay the respondent the ‘alleged outstanding salaries’ and that as a result, the matter had not prescribed as the ‘dispute was reported within the two year period’ prescribed in terms of the Labour Act [Chapter 28:01].  The arbitrator also found that the employment relationship could not have been terminated in January 2012 as evidenced by from the participation of the respondent in the scheme of arrangement as well as the absence of the request for terminal benefits before the arbitration tribunal.

The arbitrator ordered the appellant to pay the respondent US$ 217 000 less any statutory deductions and together with interest thereon at the rate of five percent effective from the date of the default. The US$217 000 was constituted of salaries, the alternative of pension, fuel allowance, own vehicle usage, cell phone allowance, cash in lieu of 60 days of leave, vehicle maintenance and gratuity. The amount admitted by the respondent as having been paid to him was subtracted.

The appellant was aggrieved by the award and appealed to the Labour Court on the following grounds:

The Honourable Arbitrator erred at law in holding that the period of prescription should be reckoned from October 2013 instead of on the dates when each payment became due.

The Honourable Arbitrator erred in fact and law in placing the burden of proof of the date of termination of the employment relationship on the Appellant instead of the Respondent.

The Honourable Arbitrator misdirected himself grossly on the facts in concluding that the employment relationship terminated in July 2012 and yet no proof of this was placed upon him.

The Honourable Arbitrator misdirected himself in finding that Appellant had not placed an email by the Respondent claiming terminal benefits before the Honourable arbitrator and yet this email formed part of the annexures placed on record.

The Honourable Arbitrator erred in law in failing to find that the parting gratuity was only due and payable in the event of termination as contemplated by the agreement.

The Honourable Arbitrator erred in fact and in law in finding that the claim for motor vehicle repairs was payable and yet no proof of these repairs having been done nor quantum thereof having been placed before him.

The Labour Court dismissed the second, third and fourth grounds of appeal. The court found that the grounds in issue were premised on factual findings by the arbitrator. It was the view of the court that the appellant had failed to demonstrate that the findings “were so unreasonable to the extent of being defiant to logic”.

In respect of the question of prescription, the Labour Court found that the dispute arose when the appellant indicated to the respondent that it was unwilling to pay the outstanding salaries in October 2013. As a result, it found that the respondent’s claim had not prescribed as the matter was referred for conciliation on 24 June 2014.

Before this Court, the appellant has raised four grounds of appeal. These are they:

The Court a quo erred in its failure to determine that the Respondent’s claims for arrear salaries that had not been made within two (2) years of being due had prescribed. At law prescription on a claim for an unpaid debt begins to run at the point all the constituent facts attendant to such a claim are present; and in the context of section 94 (3) of the Labour Act, such claims prescribe after two (2) years.

The court a quo also erred in holding that the Appellant’s second, third and fourth

grounds of appeal a quo sought to impugn factual findings and that such grounds had not raised no questions of law. The said grounds raised cogent questions of law as they sought to attack the arbitrator’s legal conclusion that the Respondent had not resigned. At law once a party seeks terminal benefits such request is adjudged to repudiate the contract of employment.

Additionally, the court a quo erred in holding that the Respondent’s contract had

been unlawfully terminated. At law the Respondent’s demand for terminal benefits

was inconsistent with the continuation of an employment relationship and evidenced

repudiation viz any terminal benefits that may have accrued to the Respondent were due notice is given.(sic)

The court grossly misdirected itself in finding that the Respondent’s claim for

vehicle maintenance was reasonable in the circumstances. Such conclusion of fact

is unreasonable in its defiance of logic as no evidence of such expenses were ever

led and no tariff had been objectively assessed to measure such expenses against.

Before us, Mr Zhuwarara argued for the appellant that in terms of section 94 (1) of the Labour Act [Chapter 28:01] a labour officer has no jurisdiction to entertain a dispute or unfair labour practice that has not been referred to him within two years from the date when the dispute or unfair labour practice first arose. He contended that this constituted a statutory bar to the respondent from enforcing any rights arising from an alleged dispute or unfair labour practice thus extinguishing a debt not actioned before the lapse of the two years. He further argued that the court a quo made a grave error of law when it accepted that the causa arose in 2010 but proceeded to hold that the dispute arose when the appellant indicated that it was no longer prepared to pay the salaries claimed as unpaid by the respondent. Mr Zhuwarara contended that once an employee has not been paid for a single month, such alleged non-payment founds a cause of action. Put differently, he argued, that prescription began to run a day after the remuneration date agreed to by the parties in terms of the contract of employment.

He contended that sometime in 2011, the respondent had already laid a claim for arrear salaries. This he argued, was prior to the coming into being of the scheme of arrangement entered by the parties. He argued that by May 2012, there was a dispute in existence because the respondent had a claim and under the realm of labour law, the dispute was ripe. The respondent did nothing until June 2014 by which date, he contended, the debt was already out of time. He argued that even if computation begins in May 2012, the respondent would still be out of time by a month. He argued that there was therefore no cause that could be entertained in terms of Labour Act.

He then argued a point of law for the first time in these proceedings that through the scheme of arrangement, the parties entered into a compromise, the agreement being perfecta. He contended therefore that in terms of the scheme of arrangement, the respondent was entitled to be paid a total of US$ 1 500 in cash and the rest in debentures. The respondent was paid the amount and had a debenture for the value of US$ 112 280 issued to him. Mr Zhuwarara denied that the specific mention of the claim of the respondent in the scheme of arrangement constituted an acknowledgment of debt but said that it constituted an acknowledgement of a disputation. As a result of the scheme of arrangement, the appellant argued, the respondent surrendered the payment of the balance being paid to him in money and as a result, he could not make a monetary claim. Further, the arbitrator could not have ignored the scheme of arrangement in terms of his jurisdiction. Mr Zhuwarara argued that the error is apparent in the order of the arbitrator sounding in money contrary to the scheme of arrangement. He contended that the conciliator and arbitrator ought not to have dealt with the dispute referred to them and the court a quo erred in confirming their decisions.

Counsel for the respondent, Ms Musekiwa, initially took issue with Mr Zhuwarara’s argument on the order of the arbitrator not relating to debentures stating that it was being brought for the first time on appeal. She conceded that it was a point of law which could be raised at any stage of the proceedings. She then argued that the only reason the respondent had placed reliance on the scheme of arrangement in the proceedings was to prove that the respondent was in the employ of the appellant until after the signing of the scheme of arrangement pursuant to which he resigned. She argued that the respondent had participated in the scheme of arrangement and had continued in the employ of the appellant until July 2012. This submission was made in an attempt to rebut the argument by the appellant to the effect that the respondent had left employment in January 2012.

Ms Musekiwa contended that the respondent had made a claim for the payment of his arrear salaries. The letter in which the claim was made was not made part of the record, the only reference to such claim being the response to the same by the appellant. Ms Musekiwa argued further that with the exception of the plea of prescription raised before the arbitrator, the claim had been submitted before the scheme of arrangement had been concluded and, that, as a consequence, there was never a point when the amount was disputed by the appellant. She argued that the respondent only realised that he had a dispute with the appellant when he received the response to the claim on 24 October 2013 in terms of which the appellant admitted owing the respondent only US$ 113 780, with the rider that only US $ 1 500 would be paid in cash with the balance being paid through the issue of a debenture for US$ 112 280. Therefore, she concluded, the dispute arose in October 2013 and not before.

Mr Zhuwarara disputed that the respondent referred a dispute but an unfair labour practice. He contended that the distinction of the two arose from the Labour Act stating that a dispute is a contestation of positions which have not been resolved by statute but the definition of an unfair labour practice has been resolved by the Labour Act. He denied that there was an interruption of prescription by any payments and argued that the burden is on the respondent to prove such interruption and the latter had failed to do so. He contended further that the respondent could only be paid in terms of the scheme of arrangement.

ISSUES FOR DETERMINATION

Whether the respondent’s claim had prescribed by June 2014?

Whether the order of the arbitrator sounding in money was competent?

Whether the respondent repudiated the contract by requesting for payment of his terminal terminal benefits?

Whether the respondent was entitled to the award for vehicle maintenance in the sum of $ 7 000?

Whether the respondent’s claim had prescribed by June 2014

It is common cause that the respondent was employed by the appellant on

1 September 2010. In his statement of claim before the arbitrator, the respondent acknowledged being paid the sum of US$ 169 000 part of which he stated to have been paid to him in the form of debenture shares issued out to him, which amounts to US$ 112 280. He also acknowledged payment of US$ 1 500 in cash. This accounts for $113 780 of the amount of US$ 169 000 he admits as having been paid to him.

In the statement of claim before the arbitrator there are no specific details as to when or specifically towards which of his entitlements the other amounts were paid to him. His legal practitioners sought to make factual submissions for him in written submissions filed on his behalf in this Court. Counsel for the respondent stated in the heads of argument that the respondent was paid ‘$ 55 200.00 of his salary entitlements which roughly amounted to 5 months pay.’ This factual statement has no genesis in the pleadings of the respondent starting from the arbitration stage to this Court.

As a result, before this court is a respondent who stated before the arbitrator that he was employed for 23 months from 1 September 2010 to 30 July 2012. He has admitted being paid some amounts which he has not specified as to when and appropriated to which of his entitlements these amounts were made.  His claim in terms of the Labour Act was made on 24 June 2014. The appellant has argued that any cause in terms of labour law would have expired. Section 94 of the Labour Act governs prescription in labour matters.

Section 94 of the Act provides:

94 Prescription of disputes

(1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless-

(a) it is referred to him; or

(b) has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.

(3) For the purpose of subsection (1), a dispute or unfair labour practice shall be deemed 	to have first arisen on the date when-

(a) the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or

(b) the party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph (a), if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.

The first issue that arises is when the dispute or unfair labour practice arose. Section 94 (3) of the Labour Act states that a dispute or unfair labour practice shall be deemed to have arisen on the date when the act or omission forming the subject of the dispute or unfair labour practice first occurs. According to the appellant, the omission was the non-payment of salaries and benefits which arose at the end of each month that the respondent was not paid. According to the respondent, the act was the denial of the full extent of the claim of the respondent. Therefore in essence, the appellant contends that the respondent referred the unfair labour practice of non-payment of salaries and entitlement after it had prescribed. The respondent argues that it was a dispute that arose when the appellant acknowledged owing the respondent only to a certain extent of the claim he had placed before the appellant. If indeed it was an unfair labour practice then indeed it would have prescribed.

The inquiry that must be made therefore, is whether the terms of reference related to an unfair labour practice or a dispute of right as to what the respondent was supposed to be paid by the appellant for the subsistence of the employment relationship. Before the arbitrator, the essence of the terms of reference was to make an inquiry into whether the respondent was entitled to more than he had been paid by the appellant. Further the fourth term of reference couched thus:  ‘Whether or not the purchaser of the company, Lobels has the authority to vary the claimant’s contract and the values of what is owed’ could be read to mean or imply that the claim by the respondent arose after he had been paid certain amounts as a consequence of a demand for payment of specified amounts and which claim was acknowledged by the appellant in the scheme of arrangement.

From the facts it is clear that the dispute referred to the labour officer arose in October 2013 when the appellant acknowledged and paid only part of what the appellant claims he is owed. This would arise from the ‘disputation’ that Mr Zhuwarara contended to have been acknowledged in the scheme of arrangement. Any other meaning would create a situation in which the appellant would have deliberately protracted the period for the ‘verification’ of the respondent’s claim so that it would prescribe. I also did not understand Mr Zhuwarara to argue that the debt for outstanding salaries was not specifically acknowledged in the scheme of arrangement.

The dispute that arose in October 2013 would fall under disputes of rights for the determination of whether the appellant was entitled in terms of his contract to be paid more than the appellant paid him. By June 2014, this dispute would not have prescribed. It must be borne in mind that s 94 of the Labour Act relates to disputes and unfair labour practices. As argued by Mr Zhuwarara, an unfair labour practice is defined in terms of the Labour Act and a dispute is a contestation of positions. The dispute as to whether in terms of the contract of employment the respondent was entitled to more than the amount the appellant paid to him in terms of the scheme of arrangement and acknowledged to the respondent would have arisen in October 2013.

It is also apparent that by the time the scheme of arrangement was entered into the respondent had made a claim for arrear salaries as shown by the specific mention of the claim in the scheme of arrangement. Since the scheme was entered into in May 2012 it therefore follows that the appellant had knowledge of the claim for a considerable period prior to the time that the appellant alleges that the claim had prescribed. This therefore puts paid to the notion by the appellant that the claim prescribed on 1 September 2012 as computed by it from the commencement of the employment relationship on 1 September 2010. The rationale for extinctive prescription was described in Road Accident Fund and Another v Mdeyide  2011 (1) BCLR 1 (CC) ; 2011 (2) SA 26 (CC):

This Court has repeatedly emphasised the vital role time limits play in bringing certainty and stability to social and legal affairs and maintaining the quality of adjudication. Without prescription periods, legal disputes would have the potential to be drawn out for indefinite periods of time bringing about prolonged uncertainty to the parties to the dispute. The quality of adjudication by courts is likely to suffer as time passes, because evidence may have become lost, witnesses may no longer be available to testify, or their recollection of events may have faded.10 The quality of adjudication is central to the rule of law. For the law to be respected, decisions of courts must be given as soon as possible after the events giving rise to disputes and must follow from sound reasoning, based on the best available evidence.

Loubser MM, in his book Extinctive Prescription, Juta & Company, 1996 at page 22-23, dealt with the policy considerations underlying extinctive prescription by stating first that its main object is to ‘create legal certainty and finality in the relationship between creditor and debtor after the lapse of a period of time and that emphasis is on the protection of the debtor against a stale claim that has existed for such a long time that it becomes unfair to require the debtor to defend himself against it’.

This rationale becomes important in the sense that from an unspecified period extending to May 2012 when the scheme of arrangement was signed, the appellant was aware that the respondent had a claim which it was still to verify. In other words, with the undertaking to verify the claim by the appellant, the omission or act that would give rise to a claim had not arisen. Had the respondent instituted proceedings in the presence of an undertaking to verify his claim and in the midst of the negotiations for the scheme of arrangement, could the claim have been related to by the courts? In any event, the nature of the dispute of the respondent stemmed from the non-payment by the appellant of the fullness of his claim for arrear salaries. He could not have known that the appellant would not pay him the full extent of his claim and only had such knowledge when the claim was repudiated in specific terms. As a result by June 2014, that specific dispute and claim had not yet prescribed.

It becomes pertinent to determine the point of law by Mr Zhuwarara in relation to the competence of the order of the arbitrator.

Whether the order of the arbitrator sounding in money was competent

Before the Labour Court the arbitrator was criticized for allegedly placing the onus to establish   the date of termination of the contract upon the appellant instead of the respondent. The arbitrator was also criticised for having found that the relationship terminated in July 2012 instead of January 2012 as contended by the appellant. Consequently, it was contended that as a result, the respondent had no entitlement to a gratuity in the absence of evidence that the contract had been terminated as provided in the executive agreement.

It is noteworthy that, admitted by both parties is the fact that the respondent played a significant role in the negotiation of the scheme of arrangement. This is also evident from the fact that his claim, out of all the claims by all the other concurrent creditors, has specific mention in the scheme of arrangement.

A scheme of arrangement is by its nature a binding agreement reached between a company bedevilled with financial difficulties and its creditors regarding the payment of its debts to those creditors. This specific scheme of arrangement generally identifies the employees of the appellant as one of its concurrent creditors. The respondent was such an employee as shown by the employment agreement placed on record. Secondly, the scheme of arrangement set up a payment plan for concurrent creditors including the appellant’s employee creditors up to a cap of US$1 500 in cash and also through the issue of debentures in respect of proven claims. Thirdly and even more importantly, the scheme of arrangement stated that liability to the respondent was still to be verified after which arrear salaries would be paid to him in the same manner as provided for in relation to the other employee creditors of the appellant. This overwhelmingly proves that the respondent was not made an exception in terms of the scheme of arrangement. He acknowledged before the arbitrator to have been paid in terms of debentures. By extension, he admitted to have been paid according to the scheme of arrangement.

In my view the finding by the court a quo that the appellant had not shown that the findings of fact by the arbitrator were so unreasonable as to be in defiance of logic cannot be impugned. The respondent participated in the negotiations placing him in the work place up until the termination of the life span of the scheme in July 2012.

The scheme of arrangement which the respondent participated in acknowledged categories of creditors. Employees comprised unsecured creditors. In terms of the scheme employees would be paid cash up to a cap of USD 1 500. Any amount in excess of that sum would be paid through debentures. A special provision in the scheme for directors was worded as follows:

“Liabilities to Directors-save for Retired Brigadier David Chiweza’s claim for payment of arrear salaries, which is still to be verified and treated in the same manner as employee creditors of Lobels Bread, no Seller or any entity or person related to or controlled by the Seller or any affiliate thereof shall have a claim against the Company for payment of any money whatsoever.”

As a consequence, in terms of the scheme of arrangement, whether one was an employee or a director any amount in excess of US$ 1 500 would be paid as debentures. The arbitrator made reference to the scheme in deciding when the respondent would have left employment. In the determination of the dispute before him, it leaps to the mind that the arbitrator completely ignored the scheme and its treatment of its creditors. Although the respondent admitted having received payment in the sum of US$169 000, in his award the arbitrator stated the amount received before tax as constituting US$229 000. There is in my view an obvious misdirection on the part of the arbitrator.

However, I note that in the grounds placed before the Labour Court the appellant did not challenge the award of sums to the respondent by the arbitrator apart from the gratuity and the claim for motor vehicle expenses. The appellant was content to attack the award solely on the basis that the dispute had prescribed and that therefore the arbitrator lacked jurisdiction. It is clear therefore that in so doing, the appellant waived its right to challenge the arbitral award on the merits except as stated above. It would be inappropriate, in my view, for those issues to be raised for the first time before this court. The court can therefore only relate to the appeal in relation to those two awards, viz, the gratuity and the payment of expenses relating to the use of his personal vehicle by the respondent.

Whether the respondent repudiated the contract by requesting for the payment of his terminal benefits?

The appellant’s complaint before this court is that the court a quo ought to have found that the respondent had repudiated the contract of employment by requesting for payment of his terminal benefits. The email requesting terminal benefits is not before this Court.

In the court a quo, the appellant’s complaint was that the arbitrator had misdirected himself by finding that the appellant had not placed the email on record when it was part of the annexures before the arbitrator. This was one of the grounds which the court a quo dismissed as a ground of appeal on the premise that it sought to challenge findings of fact made by the arbitrator and did not raise questions of law. The appellant argues before this Court in its second ground of appeal that the respondent repudiated the employment contract by requesting for terminal benefits.

First of all, a finding that there is repudiation is a finding of fact, which is to the effect as to whether or not there actually was repudiation. The email that is purported to be the proof of such repudiation is not before this court. In the absence of the email and its specific wording it would be speculative for this court to delve into an issue which is clearly one of fact. The major tragedy befalling the appellant’s ground of appeal is the very absence of the proof of the respondent’s ‘repudiation’ or ‘unilateral termination’. This Court cannot make a finding on the basis of no evidence before it. In addition this issue was not dealt with by the court a quo on the basis that it related to a ground of fact as opposed to a ground raising an issue of law.

In the premises without evidence that the contract was terminated in a manner that would disentitle the respondent to the gratuity awarded by the arbitrator, the award cannot be interfered with.

Whether the respondent was entitled to the vehicle maintenance for $ 7 000

Having found that the claim had not prescribed, the other leg of the appellant’s challenge before the court a quo and this court is that the arbitrator granted the respondent US$ 7000 as vehicle maintenance in the absence of proof of that claim.

In his claim before the arbitrator, the respondent stated that he used his own vehicle during the subsistence of his employment contract and he alleged that he incurred a total of US$ 7 000 in repairs and maintenance of his vehicle. The appellant requested for proof of such repairs and the respondent’s response was that he had given the receipts and invoices to the appellant a ‘long time ago’ when the repairs had been done. The arbitrator found that:

‘The claim for $7 000 maintenance of Claimant’s vehicle is applicable for it is contractual. Even though the Claimant didn’t produce the receipts to this Tribunal, on a balance of probabilities the claim is justified. The vehicle the Claimant was using is an executive vehicle and he used it for the entire period of 23months. Practically, there is no way such a vehicle can survive that period without being maintained. Averagely, the maintenance of such a vehicle ranges from $1 000 per every three months, if its normal service, a major service will cost much. Since the Claimant served 23 months it gives us seven times the vehicle needed to be serviced. That will translate to $7 000 and the figure is conservative.’

The court a quo upheld this finding as a factual finding and on the basis that it was not unreasonable for the respondent to have spent an average of $1 000 every month on his vehicle. In Mvududu v ARDA SC 58/15, this court quoted with approval the decision in Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 (S) to underscore that any finding that is not based on evidence is erroneous:

‘Thus, in Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 (S), where no evidence was led as far as the award of damages was concerned, it was held that it was necessary for the Labour Relations Tribunal to hear evidence in order to assess the damages. As was aptly observed by Gubbay CJ, at 380E:

“For these reasons, the award must be set aside, for to quantify damages, or indeed make any finding, on no evidence, is to err in law.’

The arbitrator made a finding that the respondent was entitled to a claim of vehicle usage in the sum of $ 7000 which was not supported by evidence. The respondent, in terms of his contract, was entitled to a monthly vehicle usage allowance of US$ 1000 and maintenance costs of his personal vehicle. It is true that the contract provided for the maintenance costs but whether or not the vehicle was repaired or whether the respondent sent his vehicle for maintenance and the attendant costs thereto is a factual finding to be made on evidence. No evidence was brought before the arbitrator which would justify the arbitrator making such findings on a balance of probabilities. This is especially so when it was clearly evident that the appellant had disputed liability and put the respondent to the strictest proof. If it were to be assumed to true as claimed by the respondent that he had submitted the receipts and invoices to the appellant, then the respondent would have been in a position to call for such evidence from those persons form whom he submitted the invoices. Further to the above, he could have obtained copies of such invoices from the mechanics who carried out the maintenance and repair work. He could have also brought an expert who could have testified on the projected costs of maintenance and repair. Instead, the arbitrator made himself an expert in vehicle maintenance and placed a figure on the cost of maintenance for the vehicle. He also made findings as to the frequency of such maintenance and repairs. This was a misdirection. This misdirection can be cured by a remittal to the court a quo for the determination of the quantum of vehicle maintenance and repairs.

DISPOSITION

The appellant did not challenge the specific amount ordered under the award with the exception of the vehicle maintenance expenses. The only challenge was to the jurisdiction of the arbitrator based on the contention that the matter had prescribed before its referral to the arbitrator. That challenge has been unsuccessful leaving the bulk of the award unscathed. The appeal succeeds in respect of the claim relating to the repairs to the motor vehicle. The rest of the appeal must fail.

In relation to the issue of costs each of the parties has been partially successful as regards costs. It would be only just therefore if each of the parties is made to pay its own costs.

In the result an order will issue as follows:

The appeal partially succeeds to the extent set out in para (ii) herein.

The order of the court a quo is set aside in part to read:

‘The appeal in relation to the claim for costs of repair and maintenance of the motor vehicle is allowed.

The rest of the appeal is dismissed.’

The question of quantum of the motor vehicle expenses is remitted to the Labour Court for quantification.

The rest of the appeal is dismissed.

Each party is ordered to pay its own costs.

GWAUNZA, DCJ:				I agree

MAVANGIRA, JA:				I agree

Mawere Sibanda, appellant’s legal practitioners

Mambosasa legal practitioners, for the respondent