NEC Transport Operating Industry v Kukura Kurerwa Bus Company (Pvt) Ltd. (HC 11142 of 2014; HH 171 of 2017) [2017] ZWHHC 171 (15 March 2017)

1 HH 171-17 HC 11142/14 NATIONAL EMPLOYEMNT COUNCIL FOR THE TRANSPORT OPERATING INDUSTRY versus KUKURA KURERWA BUS COMPANY (PVT) LTD HGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 7 February 2017 and 15 March 2017 Civil Trial K Tundu, for the plaintiff T Deme, for the defendant MATANDA-MOYO J: This is an application for absolution from the instance. The plaintiff instituted a claim against the defendant for the following relief: a) payment of the sum $15 890-56, being arrear levies due and payable to the plaintiff by the defendant in terms of s 27 of the Collective bargaining Agreement: Transport Operating Industry SI 67/2012; b) payment of future levies/dues as may remain outstanding up to the date of payment calculated at the rate of US$1 232-50 per month in sync with the defendant’s employment levies, which stood at 250 at that time; c) interests on (a) and (b) above, at the rate of 15% per annum. d) Costs off suit on a legal practitioner-client scale. The defendant denied liability on the basis that at that time the defendant had below hundred employees who fell under the jurisdiction of the plaintiff. The defendant also disputed that the amount claimed was due to the plaintiff as its employees have not been receiving salaries during the period in question. Deductions could therefore not be done without payment of salaries. The defendant also denied being a member of the plaintiff. The defendant averred that the plaintiff severed relations with the defendant and the defendant was therefore under no HH 171-17 HC 11142/14 obligation to act as a collecting agent of the plaintiff. There was therefore no recognised cause of action at law against the defendant as there exists no legal relationship between the parties giving rise to the claim. At pre-trial conference the issue referred to trial was (i) whether the defendant was liable to the plaintiff in the sum of $15 890-00 as alleged or at all. Conrad Chinembiri testified on behalf of the plaintiff. He testified that he is employed as the chief designated agent for the plaintiff and that he has been so employed for the past fifteen years. His duties include labour inspection and levy collections. He testified that the defendant is a member of the plaintiff having registered with the Transport Industry – s 30 of the Collective bargaining Agreement for Transport SI167/12 refers. The defendant has over the years failed to remit levies in terms of s 27 of the CBA. At the date of the summons the figure stood at $15 890- 00 which figure has to date accumulated to $33 737-56. He testified that the claim covers the period September 2013 to date. It was his testimony that the last figures declared by the defendant were calculated from a work force of two hundred and fifty (250). 250 was then multiplied with the average wage between the highest paid and the lowest paid. Such average wage figure was $375-00. This witness produced the last declaration form by the defendant which covered the period June to July 2013. The number of employees on that declaration stood at 250. That is the number the plaintiff used to calculate its claim to present. It also testified that in terms of the C. B. A it is the duty of the defendant to declare its employment figures and wages to the plaintiff. In calculating the amount due the formula used is 0.69 of the total wage which comprise employee contribution. Further to that the defendant as an employer is obliged to contribute an equal sum. Such calculation will thus be 0.68 of 375.00 which amounts to $2.463 x 2 (employer contribution) amounting to $4.93 multiplied by the number of employees which is 250 in this case equaling to $1 180-00 per month. From 1 July 2013 there was a 6% wage increment. He testified that he could not comment on the assertion by the defendant that it only employs a hundred employees. The defendant has not declared any figures to the plaintiff since July 2013. This witness also testified that the defendant had options to follow if it was facing difficulties in paying its workforce. It could either reduce hours of work and hence reduce is HH 171-17 HC 11142/14 wage bill or it could apply for waiver to pay minimum wages in terms of s 28 A of the C. B. A or even apply for exemptions from paying. He conceded that at some point the defendant applied for shorter working hours which was granted. The defendant also applied for exemption to pay the 6 % wage increment but because at the time of application the defendant was not paying its levies, the matter could not be determined. The defendant was advised but never responded. Under cross examination he conceded that it was one of his duties to carry out inspections at members premises to ascertain number of workers, whether such workers were being provided with safety clothing and to check whether clients were paying their levies. This witness admitted having inspected the defendant’s premises sometime in September 2015 where the defendant declared having 58 employees under its employment. He was questioned why he would continue levying for 250 employees when inspection showed there were 58, he claimed such figures were verbally declared. He said without being provided with records they would continue to claim the last declared number which is 250. He conceded that his papers did not deal with the actual figured on the ground. He also conceded that the defendant could only collect remittances upon payment of salaries. This witness insisted that even where wages are not paid employer’s contributions remain due. This witness conceded he has not presented evidence on how he arrived at $33 737.56. The plaintiff closed its case and the defendant applied for absolution from the instance. The basis for such application was that the plaintiff had not proved any evidence concerning the total labour force of the defendant according to grades. The defendant also averred that the plaintiff has produced oral evidence showing it was aware the defendant had 58 people in its employment as found out during one of its inspections. The plaintiff could not say which among the defendant’s employees were its members. The plaintiff also failed to prove that the defendant was currently paying salaries to its worker. Its figures are fraught with inconsistencies. Having conceded out one point the defendant’s employees were authorised shorter working hours, but the claim does not consider that. Absolution as defined is an act of freeing from blame and releasing from consequences, obligations or penalties. ‘Instance’ refers to a particular case. It then follows that absolution from the instance is a state of being released from a particular case. The approach to absolution is HH 171-17 HC 11142/14 clearly set out by HARMS JA in the case of Gordon Lloyd Page and Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92 E-93 A. “The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms ‘When absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should nor ought to) find for the plaintiff (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)” This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim to survive absolution because without such evidence no court could find for the plaintiff (Marire and Trade Insurance Co Ltd v Van der Schyff 1972 (1) Schmick Bewysreg 4th ed at 91-2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one…. Having said this absolution at the end of the plaintiff’s case should be granted sparingly but when the occasion arises, a court should order it is the interest of justice.” See also ATW de Klerk v Absa Bank Ltd and others 2003 (4) SA 315 (SCA). The law sets out the threshold of proof required in order to put a defendant on his/her defence. Once that level of proof has not been achieved by the plaintiff then the matter ends there. However, the court is not allowed to unnecessarily assess the evidence for that purpose, lest, it seem to take a view of its quality and effect that should only be reached at the end of the whole cases. See De Klerk v Absa Bank (supra) and Gfooor Unie Versekeringsadvisears (Edmas) Bpk 1961 (1) SA 335 A at 340 D-G. The defendant is of the view that the evidence adduced by the plaintiff’s single witness is speculative and that the plaintiff has failed to establish a prima facie case. The plaintiff has failed to prove the number of employees entitled to such deductions. It also failed to show that the amount is due and payable having failed to show that the employees are currently receiving a salary. The plaintiff on the other hand argued that the evidence of its witness proves on a prima facie basis that it is entitled to the amounts claimed. Its argument is that it relies on the last returns by the defendant of 250 employees as provided under s 27 of the C. B. A. It is the plaintiff’s position that considering the oral evidence and exhibits produced a reasonable court may find for the plaintiff. HH 171-17 HC 11142/14 Whilst there is evidence that this court may reasonably find for the plaintiff that the defendant is its member there has been no evidence placed before this court on the number of employees involved, their grades and remuneration. The plaintiff has not shown that the employees on the defendant’s payroll have been receiving a salary. Having been informed that no salaries were being paid the onus was on the plaintiff to produce prima facie evidence that such employees received their salaries and that they continue to receive salary. It is crucial element of finding liability that the amount claimed is due and payable. Without evidence that the employees are receiving salaries, the amounts claimed remain not due and payable. Thus applying the above legal principle on absolution to the facts of this matter, I am of the view that this is a matter warranting absolution from the instance. Accordingly I order as follows; 1) The defendant’s application for absolution from the instance at the close of the plaintiff’s case be and is hereby granted. 2) The plaintiff to pay costs of suit. Chihambakwe Mutizwa & Partners, plaintiff’s legal practitioners Chibune & Associates, defendant’s legal practitioners