Appeal, Leave to Appeal re: Approach, Notice of Appeal and the Right of Appeal iro Labour Proceedings

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
Ruled By: GWAUNZA JA

The respondent was employed by the appellant as manager of its Mutare branch. On 25 June 2002, a Mr G Good ("Mr Good"), who was the Director responsible for Sales and Marketing, addressed a letter to the respondent suspending him from duty with immediate effect without pay and benefits.

The suspension followed an investigation conducted at the instance of the appellant into the offences allegedly committed by the respondent. The offences essentially were dishonesty, theft of company property, and gross dereliction of duty.

Mr Good had considered both the findings of the investigation and the respondent's response to them, before suspending him. The letter of suspension referred to invited the respondent to report to the appellant's Mutare Branch for a disciplinary hearing on the 3rd of July 2002.

The hearing was to be held in terms of Step 2 of the "Disciplinary Structure and Levels of Authority", part of the appellant's Code of Conduct.

A day before that date, the respondent's legal practitioner addressed a letter to the appellant:

(a) Requesting a postponement of the hearing to 12 July 2002;

(b) Asking for confirmation that the respondent would be entitled to legal representation at the hearing; and

(c) Objecting to the respondent being represented at the hearing by a member of the Workers' Committee on the ground that, as a Branch Manager, he did not "belong" to the Workers' Committee. Also that, in any case, most of the allegations he was facing stemmed from his subordinates.

It would appear from the record that the request for legal representation of the respondent at the hearing, which was postponed to 10 July 2002, was denied.

The respondent's legal practitioners wrote again to the appellant on 9 July 2002, reiterating their argument that the respondent could not be represented by the Workers Committee at the disciplinary hearing. In the same letter the legal practitioners pointed out as follows:

"If indeed the idea of his being legal (sic) represented at the hearing is disagreeable, then we suggest that a mutually agreed managerial representative be appointed to represent him or alternatively the matter should be referred to the Ministry of Labour for adjudication.

Please note that under our advice Mr Gwekwerere will not be attending the hearing set for Wednesday the 10th July and will only attend a hearing which meets the minimum requirements of justice and fair play."

The disciplinary hearing was duly held, in the absence of the respondent, on 10 July 2002. He was found guilty as charged and dismissed from his employment.

After what I view as a half-hearted attempt to appeal to the Disciplinary Committee of the appellant, the respondent then applied to the High Court for a review of the proceedings leading to the decision to dismiss him. He cited two grounds of review, namely;

(i) That the procedure used in dismissing him was such as to deny him a fair opportunity to be heard; and

(ii) That no fair hearing was convened in terms of the Code of Conduct.

The court a quo found in favour of the respondent and ordered the appellant to reinstate him to his former employment without loss of salary or benefits.

Dissatisfied with the decision of the High Court, the appellant now appeals to this Court.

The appellant's main ground of appeal is that the court a quo erred in hearing the matter considering:

(a) That the respondent had not exhausted domestic remedies provided in the Code of Conduct; and

(b) That the appellant had, indeed, not furnished the court a quo with a full record of the disciplinary proceedings.

It is argued, in this latter respect, that the decision of the court a quo can therefore not be a review of such proceedings since the regularity or otherwise of the proceedings can only appear from the record.

Another ground of appeal is that the court a quo should have, as is the norm, ordered payment of damages in lieu of reinstatement.

I will consider these grounds in the light of the evidence before me....,.

It is not in dispute that the respondent was called to attend a disciplinary hearing in accordance with Step 2 of the "Disciplinary Structure and Levels of Authority" of the appellant's Code of Conduct.

Through his lawyers, the respondent expressed misgivings about the composition of the hearing panel, as already explained. He also set certain conditions for his attending, but, in the end, and as earlier threatened by him, refrained from attending the hearing, which went ahead without him.

Witnesses' evidence was recorded and considered against the respondent's written responses to the various charges levelled against him.

The hearing was conducted by the Head of Department, Mr Good, in the presence of an accountant, a Mr Marshall, whose role at the hearing was not explained.

The determination to dismiss the respondent was communicated to him on 22 July 2002. The respondent, through his lawyers, then wrote to Mr Good, on 2 September 2002, indicating his intention to appeal to the Disciplinary Committee of the appellant.

The letter went on to say;

"Strictly speaking, and in our respectful view, our client has not been accorded a hearing at all. This could be rectified by following any of our suggestions proffered in our letter of 9 July 2002. Please let us hear from yourselves within 7 days of this letter. In the event that you fail to accede to our suggestions within 7 days of this letter, we have to advise that it is our client's intention to apply to the High Court for similar relief."

In the event, and despite giving notice to appeal, the respondent filed review proceedings in the High Court.

His reason for not pursuing the appeal to the Disciplinary Committee was that the appellant, through Mr Good, had "thwarted" his attempt to exhaust local remedies. This was in reference to a letter written by Mr Good, in response to the respondent's letter of 2 September 2002. In that letter, Mr Good had implied that the respondent's appeal would be out of time and that he still stood dismissed.

Having considered the appeal process, as outlined in the appellant's Code of Conduct, I am persuaded by the appellant's contention that the respondent abandoned his domestic remedies for no valid reason.

According to the Code of Conduct, the respondent was obliged, which he in fact did, to notify the Head of Department of his intention to appeal to the Disciplinary Committee. Nowhere, however, does it say that the Head of Department must then give his leave for the aggrieved employee to so appeal.

Indeed, Mr Good's letter, of 6 September 2002, while it may not have been encouraging, did not purport to forbid the respondent from appealing to the Disciplinary Committee. In any case, the letter itself was unnecessary and certainly did not stand in the way of the respondent's appealing to the Disciplinary Committee had he so wished.

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS
Ruled By: ZIYAMBI JA

A person wishing to exercise his right of appeal on a point of law from a judgment of the Labour Court is required by the Rules of that court to seek its leave to appeal within 30 days of the date of the judgment. The date on which the application for leave to appeal was made is not apparent on the record but, as will be seen from the above, the judgment of the Labour Court sought to be appealed against was given, ex facie the judgment, on 25 February 2011. The applicant would have had 30 days within which to make the application. In terms of section 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975, however, an appeal to the Supreme Court shall be noted within 15 days of the date on which the judgment appealed against was given. Thus, the applicant was confronted with the hurdle faced by all would-be appellants to the Supreme Court from judgments of the Labour Court. He had to seek and obtain leave of the Labour Court before he could file his notice of appeal to this court. In this case, leave to appeal was granted by the Labour Court on 11 August 2011 by which time the 15 days had long elapsed.

In an application in terms of section 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975, a judge may extend the time within which to note an appeal if special circumstances are shown. It is settled that special circumstances would include the cumulative effect of, inter alia, the extent of the delay in filing the notice of appeal, a reasonable explanation for the delay, reasonable prospects of success of on appeal and any prejudice to the party against whom the application is granted.

The instant application was filed on 16 January 2012, in excess of 5 months from the date of the grant of leave to appeal by the Labour Court. Such a delay is by all accounts inordinate. The explanation given for the delay is that there was a change of legal practitioners. The applicant, in his founding affidavit, states as follows:

“From the date of the judgment to date, there has been a change of legal practitioners and my legal practitioners in the instant proceedings only assumed agency on the 9^th of January 2012 after it had taken more time to get a renunciation of agency from my erstwhile legal practitioners…,.”

No supporting affidavit from the “erstwhile” legal practitioners was attached in support of this vague averment nor was any further explanation given for the delay. In my judgment, no reasonable explanation for the delay has been given. In an application of this nature, the indulgence of the court is being sought and an applicant wishing to succeed in his application must set out fully facts which will enable the Judge to come to a conclusion that special circumstances exist which justify the grant of the indulgence sought.

The founding affidavit is woefully lacking in this regard.

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

10. On 3 June 2005, Vimbai and the Hotel's Human Resources Director (“Makoni”) appeared before the arbitrator with their legal practitioners. Both Vimbai and Makoni gave oral evidence and were cross-examined. After addresses by the legal practitioners, the arbitrator reserved his decision.

11. On 18 July 2005 the arbitrator gave his decision, which was that the MOA signed by Vimbai on 25 January 2005 was not binding on the parties because it was not an agreement in the legal sense.

12. Aggrieved by that decision, the Hotel appealed to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Act”).

13. On 5 April 2007, the Labour Court allowed the appeal and set aside the arbitral award granted on 18 July 2005.

14. Dissatisfied with that result, Vimbai appealed to this Court, leave to appeal having been granted in terms of section 92F(2) of the Labour Act [Chapter 28:01].

The grounds of appeal set out in the Notice of Appeal are as follows:

“1. The court a quo grossly erred as a question of law overturning the decision of the arbitrator on ordinary common law (principles) and not on the (principles) of public policies (enunciated) and captured in Article (34) of the UNCITRAL Model Law as incorporated in our Arbitration Act [Cap 11:15]. Put simply, (in) overturning the decision of the arbitrator, the court was obliged to consider whether the award in itself offended public policy.

2. Even assuming that the matter had to be determined purely and squarely on the basis of section 98(10) of the Labour Act [Cap 28:01], the court a quo grossly erred (in) overturning (a) finding of fact by the arbitrator. Put simply, there (were) no questions of law in the appeal pending before the Labour Court, and, for that reason, the Labour Court had no good reason to interfere with the finding of fact that (had) been made by the arbitrator.

3. Put simply, the Labour Court grossly misunderstood its functions, the court dealing specifically with questions of law under section 98(10) of the Labour Act [Cap 28:01].

4. Even assuming, without conceding, that (there were) questions of law in the appeal before the Labour Court, the Labour Court itself grossly erred in holding that (the) document executed on the 25th of January 2005 was binding, and ignored that the same had been executed under protest. In any event, to show that the appellant was not agreeing with the same he had left a settlement cheque with the respondent.”

Although four grounds of appeal are set out in the Notice of Appeal, there are in fact only three grounds because the second and third grounds raise the same issue, i.e. whether there were questions of law in the appeal pending before the Labour Court.

I shall deal with grounds 2 and 3 first, and then with grounds 1 and 4.

DID THE APPEAL TO THE LABOUR COURT INVOLVE A QUESTION OF LAW?

This question is important, because, in terms of section 98(10) of the Labour Act [Chapter 28:01], the right to appeal against the arbitrator's decision is restricted to questions of law only. The section reads as follows:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

What is a question of law was considered by this Court in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220D-F GUBBAY CJ said:

“The twin concepts, questions of law and questions of fact, were considered in depth by E.M. GROSSKOPF JA in Media Workers Association of South Africa and Ors v Press Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A).

Approving the discussion of the topic in Salmond on Jurisprudence, 12ed at 65-75, the learned JUDGE OF APPEAL pointed out, at 795D-G, that, the term 'question of law' is used in three distinct though related senses:

(i) 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 it considered to be the truth and justice of the matter'.

(ii) 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; and

(iii) Third, any question which is within the province of the judge instead of the jury is called a question of law. This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.”

Applying these principles to the Hotel's appeal to the Labour Court, there is no doubt in my mind that the appeal involved a question of law. I say so because in its Notice of Appeal, filed in the Labour Court, the Hotel based the appeal on the following ground of appeal:

“The arbitrator erred grossly at law and on the facts in holding that the Memorandum of Agreement is not (an) agreement in terms of the law.”

The issue before the Labour Court was, therefore, whether the Memorandum of Agreement (MOA) was an agreement in terms of the law. That, in my view, is a question of law within the second sense of the term 'question of law' set out above.

There is, therefore, no substance in the second and third grounds of appeal.

DOES ARTICLE 34(2)(b)(ii) OF THE MODEL LAW APPLY TO APPEALS BROUGHT TO THE LABOUR COURT IN TERMS OF SECTION 98(10) OF THE LABOUR ACT?

This issue arises because, in the first ground of appeal, it is submitted that the Labour Court should not have set aside the arbitral award unless it had been satisfied that the award was in conflict with the public policy of Zimbabwe, in terms of Article 34(2)(b)(ii) of the Model Law set out in the First Schedule to the Arbitration Act [Chapter 7:15].

Article 34 of the Model Law, in relevant part, reads as follows:

“(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if -

(a)…,.

(b) The High Court finds that -

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The award is in conflict with the public policy of Zimbabwe.

(3)…,.”

The issue set out above was considered by this Court in NetOne Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net One Employees SC89-05.

In that case, this Court ruled that Article 34 of the Model Law did not apply to an appeal against
an arbitral award brought to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01].

In my view, it is quite clear, from a careful reading of Article 34 of the Arbitration Act, that, the Article only deals with and limits the power of the High Court to set aside an arbitral award, and does not in any way deal with or limit the power of the Labour Court to set aside an arbitral award challenged in terms of section 98(10) of the Labour Act.

I cannot, therefore, see any reason for departing from this Court's decision in NetOne Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net One Employees SC89-05.

Consequently, the Labour Court did not have to be satisfied that the arbitral award was in conflict with the public policy of Zimbabwe before setting it aside.

There is, therefore, no merit in the first ground of appeal.

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer.

The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated, or that, alternatively, he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal. That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act....,.

The University appealed against the arbitral award in terms of section 98(10) of the Labour Act. Section 98(10) of the Labour Act provides as follows:

"98. Effect of reference to compulsory arbitration under Parts XI and XII

(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section."

Section 98 of the Labour Act confers on the University the right of appeal against the determination of the arbitrator on a question of law.

Having noted an appeal against the arbitral award, the University also applied to the Labour Court, in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act for the stay of execution of the arbitral award.

Section 93E(3) as read with section 89(1)(a) of the Labour Act provides as follows:

"92E. Appeals to the Labour Court generally

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires."

And:

"89. Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions –

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment….,."

Quite clearly, the Labour Act conferred on the University the right to apply for the suspension pending appeal of the arbitral award in terms of the above section.

On 3 November 2011, the Labour Court granted the University a stay of execution of the arbitral award. The Labour Court, in doing so, was intra vires the above cited provisions of the Labour Act.

On 14 November 2011, the High Court, upon application by Magaramombe, registered the arbitral award. Upon the registration of the arbitral award, the award became a judgment of the High Court: see section 92B(3) and (4) of the Labour Act.

I entertain serious doubts as to whether the mere registration of the arbitral award with the High Court has the effect of erasing or rendering null and void the prior order of the Labour Court suspending execution of the arbitral award.

That, however, is an issue that will be determined by the Appeal Court.

SC16-08 : MUROWA DIAMONDS vs UNION MAKUMBE
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

In cases where the Labour Court lacks jurisdiction to adjudicate over a matter, it may decide to re-hear the matter, as it is entitled to in terms of Section 90(2) of the Labour Act [Chapter 28:01]. Section 90(2) provides as follows: Evidence may be adduced orally or in writing in any proceedings in the ...

SC12-12 : ANDREW MACHAYA vs FARM AND CITY CENTRE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

On the issues raised by the appellant, and in particular that he had been wrongfully suspended by the respondent, the court a quo found that this was an "after thought" on his part as it had not been raised before the arbitrator. The record of proceedings before the Senior Labour Relations Officer had not ...

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after ...

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

This is an application for leave to appeal against a judgment of the Labour Court. The Senior President refused leave to appeal. After the hearing of the application, the applicant indicated that he wished to withdraw the matter. The respondent correctly insisted that the question whether leave to appeal be granted or not should be ...

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

In casu, the Board was empowered, in terms of the Police Act, to convene an enquiry into the suitability of the applicant to remain a member of the force. Section 50 of the Police Act provides as follows - “A board of inquiry consisting of not less than three officers of such rank, not being ...

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

The applicant has, however, as part of his review, alleged that there was bias on the part of the first respondent. The basis of the alleged bias is that the first respondent had arrived at a decision without having regard to the record of proceedings of the Board and without affording the applicant or ...

SC26-15 : KIEV CHAMBOKO vs DOROWA MINERALS LIMITED
Ruled By: MALABA DCJ

This is an application for leave to appeal against the decision of the Labour Court dismissing an application for rescission of a default judgment. The application followed refusal of leave to appeal by the Senior President of the Labour Court on the grounds that the application was made after the expiry of the time limit within which an application for leave to appeal against a judgment of the Labour Court must be made and absence of prospects of success on appeal to the Supreme Court.

The applicant was employed by the respondent as a Human Resources and Training Manager before he was dismissed from employment following disciplinary proceedings in which he was found guilty of acts of misconduct. The allegations of the misconduct were that he had applied for, and obtained, advances of money from a scholarship fund operated by the respondent to cover three semesters on the pretext that he had two children at the University of Cape Town in South Africa and Africa University in Zimbabwe who needed school fees to be paid in foreign currency.

It is common cause that at the time the applicant applied for, and received, payment of the money he knew that he had no children at the universities concerned. When it was discovered that the applicant had misrepresented the fact that he needed the money to pay school fees for children at the two universities the respondent suspended him. He was charged with the misconduct of committing conduct inconsistent with the fulfillment of the express or implied conditions of the contract of employment and fraud or theft by false pretences. The applicant sought to defend himself by saying that the payment of the money was on the approval of the General Manager and the Company Secretary.

He did not appreciate that the gravamen of the charges was that he had misrepresented to the officials concerned that he had children at the two universities and obtained their approval as a result of the misrepresentation.

What the applicant could not deny was that he did not use the money he had received from the scholarship fund to pay school fees at the universities because there was no cause for the payment of school fees.

The arbitrator who heard the appeal against the dismissal of the applicant accepted the argument that the money was paid to the applicant on the authority of the General Manager. He allowed the appeal. The respondent appealed to the Labour Court against the arbitral award on the ground that it was grossly irrational. Judgment in default was given against the applicant on 28 September 2007.

On 13 August 2010, the applicant made an application to the Labour Court for rescission of the default judgment. He alleged that he, or his legal representative, had not been served with a notice of set down of the appeal for hearing on 28 September 2007. He said he knew of the default judgment on 27 July 2010. He alleged that he had even filed heads of argument after that date on the belief that the appeal was still to be set down for hearing.

In paragraph 6 of the founding affidavit to the application for rescission of the default judgment, filed on 30 July 2010, the applicant said:

“6. I am applying for the main matter to be re-set down since when the matter was set down to be heard, in Mutare, I attended Court but no heads of argument had been filed.”

The application for rescission of judgment was opposed.

On 8 December 2010, the application was dismissed by the Senior President of the Labour Court. The reasons for the decision were given as being that:

“(i) The delay is too inordinate;

(ii) There is no explanation why applicant took three years to file the application for rescission.

(iii) If applicant attended court, as he indicated in his affidavit, there would have been no reason why the court would enter default judgment.

(iv) The law does not assist those that slumber and there must be finality to litigation.”

The applicant said he did not know of the judgment dismissing the application for rescission of the default judgment until on 23 February 2011. He said he received the reasons for the decision on 20 April 2011. Instead of applying for leave to appeal, he noted an appeal with the Supreme Court, only to be told by the Registrar that there was no appeal before the Supreme Court as leave had not been sought from and granted by the President of the Labour Court who made the decision.

On 20 July 2011, he made an application for leave to appeal. Leave was refused on the ground that the application for leave was made out of time with no application for condonation of failure to comply with the time limit and there were no prospects of success on appeal.

According to Rule 36 of the Labour Court Rules, 2006 the applicant was required to make an application for leave to appeal within 30 days of the judgment being given on 8 December 2010.

In making the application to the Senior President of the Labour Court for leave to appeal against the judgment on 27 July, without seeking condonation and extension of time within which to seek leave, the applicant overlooked the fact that there was no proper application before the court a quo. The applicant had lost the right to seek leave to appeal. As such, the court a quo had no power to consider the application and enter the verdict of refusal of the application because there were no substantive issues placed before the court by a void process.

This Court is in the same position as the court a quo.

It cannot grant the applicant leave to appeal in respect of a matter which is, by operation of the law, no longer appealable. The applicant's legal incapacity to seek leave from this Court to appeal against the decision of the Labour Court given on 8 December 2010 continues and has not been legitimized by the fact that the Senior President of the Labour Court said her decision on the application was a refusal of leave to appeal as if she had the power to consider the application in the first place after the expiry of the 30 days' time limit within which the application had to be made.

In any case, an applicant for leave to appeal must file a notice of appeal that conforms to the requirements of the Rules of Court at the time the application for leave to appeal is made. Where the notice of appeal filed is fatally defective, there is no valid application.

In this case, the document filed as a Notice of Appeal is fatally defective. It does not state the date on which the judgment sought to be appealed against was given.

Even if the application had been properly before the Court, it would have been dismissed for lack of prospects of success.

Whichever way one looks at the matter, the admitted facts proved the acts of misconduct charged against the applicant. The respondent stated, as the basis of the charges leveled against the applicant, that it was the belief that he had two children at the University of Cape Town and Africa University who needed school fees to be paid that induced the decision to authorize the payment of the money to him. The applicant did not deny that at the time he made the application for the money, and received payment of it, he knew that the children were not at the universities. The children had not been admitted to these institutions of learning to incur obligations to pay school fees.

It was the misrepresentation of the fact that the children were students at the universities requiring payment of school fees which induced the respondent to authorize the payment of the money to the applicant, ostensibly for the specific purpose of paying school fees for the children. It was not a defence to the charges of misconduct to say that the payment of the money was authorized by the General Manager. The same official made it clear in the letter dated 21 November 2003, inviting the applicant to attend the disciplinary hearing, that the charges of misconduct leveled against him arose from the fact that he received the money by misrepresenting that he had one child on a degree course at Africa University and another at the University of Cape Town.

The matter is struck off the roll with costs.

SC38-15 : DELTA BEVERAGES (PRIVATE) LIMITED vs KUDAKWASHE MURANDU
Ruled By: GWAUNZA JA, HLATSHWAYO JA and CHIWESHE AJA

This is an appeal against the entire judgment of the Labour Court which upheld an award made by the arbitrator in favour of the respondent. The facts of the matter are set out in the judgment of the court a quo and have been amplified with details from the appellant's heads of argument and ...

This is an appeal against the entire judgment of the Labour Court which upheld an award made by the arbitrator in favour of the respondent.

The facts of the matter are set out in the judgment of the court a quo and have been amplified with details from the appellant's heads of argument and the arbitrator's award. The additional details are necessitated by the need to consider a point in limine raised for the first time on appeal by the appellant….,.

I will start with a consideration of whether or not the point in limine meets the requirements for being raised for the first time on appeal. The appellant, correctly, avers that a point of law may be raised for the first time on appeal where the point;

(i) Is covered by the pleadings;

(ii) There would be no unfairness to the other party;

(iii) The facts are common cause; and

(iv) No further evidence would be required to support the point.

(See Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors 2006 (1) ZLR 372 (H).

1.1 Was the point covered in the pleadings?

The point in limine was raised for the first time in the appellant's heads of argument before this Court. It is not in dispute that in all the post-July 2002 proceedings in this protracted dispute, no mention was made, directly or indirectly, of the prescription issue. In reality, the question of who between the parties contributed to the delay in the finalization of the matter was raised and canvassed in relation to the date up to which any damages due to the respondent were to be paid, and not in relation to prescription. The respondent took the opportunity to respond to the appellant's contention on this issue in its own heads of argument. The court has not been pointed to anything in the documents on record that suggests that the question of prescription was ever raised in the pleadings. My own perusal of the record does not reveal any mention in any of the pleadings of this issue.

I accordingly find that beyond listing the requirements for the raising of a point of law for the first time on appeal, the appellant has not proffered sufficient evidence to substantiate its averment that this first requirement was met. The court was thus not able to properly determine this matter.

Accordingly, this point is determined against the appellant.

1.2 Unfairness to the other party

The appellant, in its heads of argument, has not advanced any argument to support a finding that the introduction of the point of law in question for the first time on appeal would cause no unfairness to the other party. The respondent has also not been helpful in this respect, having only stated in his heads of argument, that the issue of prescription “has no basis”….,. In as much as the court is handicapped in terms of being able to properly determine this point, so too is the respondent. He has not been given enough detail to enable him to understand, and properly defend, the case posed against him in this respect. The effect of this, in my opinion, is to visit unfairness on the respondent. The appellant bore the burden to prove its case on this point but lamentably failed to do so.

This point, too, is determined against the appellant.

1.3 Are the facts common cause?

I have indicated that the facts outlined above were undisputed. This is, however, not the case with the specific facts on which the point in limine is premised. The appellant avers that after the labour officer set aside the respondent's dismissal and ordered that he be reinstated and paid back pay and benefits, alternatively damages in lieu thereof, he approached a labour officer seeking the payment of damages on 16 October 2003.

Further, that the respondent had thereafter not pursued the issue of quantification of damages because he was in his rural home, Buhera. Neither party has enlightened this Court as to the exact nature of the respondent's non-pursuance of the issue of quantification of damages. Did he withdrew the matter? Did it lapse of want of prosecution? Or, also importantly, did the appellant, for its part, seek to have the matter dismissed for that reason? The answers to these questions would have been of assistance to the Court. The lack of answers might also explain why neither the arbitrator nor the Labour Court made an issue out of the alleged filing of an earlier case by the respondent for quantification of damages. The respondent, in any case, contends that any prescription that could be said to have operated against him was interrupted by the appellant's filing of an appeal. He elaborates on this averment as follows in his heads of arguments:

“Page 84 (of the record) will show that the delay in finalising the matter between the parties was caused by the appellant herein. The appellant filed an appeal which they did not prosecute. The respondent was resident in his rural home and when he decided to check with the court he discovered that the appeal had not been prosecuted and decided to take up this matter.”

As can be seen from this statement, the respondent has not given an indication as to when this appeal might have been filed, nor against what, and for what relief. The appellant, in its turn, has made no submission, nor commented, on this alleged appeal, especially considering that it was raised before the arbitrator and might therefore, conceivably, have had a bearing on its point in limine. This Court, again, finds itself incapacitated in any effort to determine whether or not the alleged prescription was, in fact interrupted. More importantly, it cannot be said, in view of all this, that all the facts in this matter were common cause.

This point is also determined against the appellant.

1.4 Is further evidence required?

My determination on the disputes of fact surrounding the issue of delays in finalizing this matter, which has a bearing on the point in limine relating to prescription, has, in my view settled the point on whether further evidence is required. Further evidence would indeed be required to support the arguments on the point in limine.

This point is, once more, determined against the appellant.

I find, in the result, that the appellant has failed to establish the requisite basis for raising the point of law in question for the first time on appeal.

The point in limine is accordingly dismissed.

SC27-13 : SHECKEM BARRISTER NGAZIMBI vs MUROWA DIAMONDS (PVT) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

Firstly, counsel for the respondent argued that the Notice of Appeal against the judgment delivered on 21 February 2011 does not comply with the provisions of section 92F of the Labour Act [Chapter 28:11] and is therefore a nullity. The Notice of Appeal was filed by the appellant on 9 March 2011. Leave to appeal to ...

The Notice of Appeal was filed by the appellant on 9 March 2011. Leave to appeal to the Supreme Court was granted by the Labour Court on 2 June 2011….,.

Section 92F of the Labour Act [Chapter 28:01] provides that:

“1. An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

2. Any party wishing to appeal from any decision of the Labour Court on a question of law in terms of subsection (1) shall seek from the President who made the decision leave to appeal that decision.

3. If the President refused leave to appeal in terms of subsection (2), the party may seek leave from the judge of the Supreme Court to Appeal.”

On 21 February 2011, the Labour Court gave a judgment against which the appellant sought to institute an appeal on 9 March 2011.

Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 provides that an appeal against a decision of the Labour Court shall be instituted within fifteen days of the decision being given. The Notice of Appeal must be delivered to all interested parties and filed with the Registrar of the Supreme Court within fifteen days of the decision appealed against being given.

The Notice of Appeal delivered and filed by the appellant was filed before leave to appeal was granted. Leave to appeal was granted by the Labour Court on 2 June 2011. The respondent's heads of argument drew the attention of the appellant's legal practitioner to the fact that the purported Notice of Appeal did not comply with section 92F(2) of the Labour Act [Chapter 28:01] and therefore a nullity.

Counsel for the appellant argued that Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 is not made subject to the provisions of any other enactment. Accordingly, it is not subject to the provisions of the Labour Act [Chapter 28:01]. Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 provides:

“Subject to the provisions of Rule 6, a notice shall be delivered and filed in accordance with the provisions of Rule 4 within fifteen days of the decision appealed against being given.”

Counel for the appellant further argued that in terms of the Labour Court Rules Statutory Instrument 59 of 2006, the application for leave to appeal to the Supreme Court may be made within thirty days after the date on which the judgment appealed against was given. An application for leave to appeal can validly be made after the dies induciae of 15 days has expired. Counsel for the appellant said an absurdity is created which results in all appeals from the Labour Court, of necessity, being out of time.

The interpretation by counsel for the appellant of Rule 36 of the Labour Court Rules, S.I.59 of 2006 and section 92F(2) of the Labour Act [Chapter 28:01] as read with Rule 4 and 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 would mean that all the provisions must be complied with before an application for leave to appeal is granted. The fact that in terms of Rule 36 of the Labour Court Rules, S.I.59 of 2006, leave to appeal may be granted after the expiry of the time within which to note an appeal against the judgment as required by Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 does not mean that a Notice of Appeal which precedes the granting of leave to appeal has been validly delivered and filed.

The purpose of requiring leave before noting an appeal to be given by the President of the Labour Court, or upon refusal, by the judge of the Supreme Court, in terms of section 92F(2) of the Labour Act [Chapter 28:01] is to prevent appeals not based on questions of law getting to the Supreme Court. The right to appeal given by section 92F(1) of the Labour Act [Chapter 28:01] is a limited right. The exercise of it is made conditional upon leave being granted.

A wish to exercise the right to appeal remains in the mind of the person intending to appeal. As long as it is not communicated to the President of the Labour Court who made the decision, or a judge of the Supreme Court upon refusal of leave by the latter, it cannot be granted or refused. When communicated by way of application for leave to appeal, the party is seeking the right to lodge the appeal. The law interposes the President of the Labour Court between the wish to appeal and the action to lodge the appeal. The authority, when granted, is prospective rather than retrospective. In other words, it could not be known whether an appeal is open to him until the special leave is given by the President of the Labour Court, or, upon refusal by him or her, by a judge of the Supreme Court.

Counsel for the appellant submitted that in the case of Holt v Brook 1959 (3) SA 803, the Court held that where leave to appeal is necessary the notice required by paragraph (a) of section 61 of Act 39 of 1896 (N) could properly be filed and served before leave to appeal was granted.

That position, with respect, would be inconsistent with our law. The court does not accept it as applicable in the present case. According to our law, authority must be sought from the President of the Labour Court for leave to exercise the right to appeal. Until that authority is granted, there cannot be said to be an appeal pending before the Supreme Court even though a purported Notice of Appeal has been filed. It is important to relate the requirement for an application for leave to appeal to the purposes thereof. These are for the decision to be made on the questions whether the grounds of appeal relate to questions of law and the existence of prospects of success on appeal. A Notice of Appeal required by Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 contains matters expressive of more than an intention to appeal.

A validly filed and delivered Notice of Appeal has the effect of entrenching the appeal.

In Jensen v Acavalos 1993 (1) ZLR 216 (S), the appropriate remedy for having a proper Notice of Appeal placed before the Court was stated. The procedure involves an application for an extension of time within which to note an appeal and condonation for late noting of appeal made to a judge of the Supreme Court. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

As no valid Notice of Appeal was filed and delivered after the grant of leave to appeal by the Labour Court on 2 June 2011, there is therefore no appeal before the Supreme Court.

In Church of the Province of Central Africa v Kunonga & Anor 2008 (1) ZLR 413 (S)…, the Court dealt with the effect of a notice of appeal not complying with the statutory requirements as follows:

“In my view, a distinction has to be made between those matters where the notice of appeal is invalid by reason of failure to comply with the provisions of the statutes, such as section 43 of the High Court Act, and a situation where a notice of appeal is invalid by reason of failure to comply with the rules of the Supreme Court. Where a notice of appeal does not comply with the provisions of the Act of Parliament, the court has no discretion in the matter and the defect is incurable. In a situation like that, it is open to the Court, and indeed a judge of the Supreme Court, to order that the appeal is a nullity and is incurably defective.”

Without an application for an extension of time within which to institute the appeal and for condonation of non-compliance with Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 no appeal has been noted. The matter must be struck off the roll. It was not difficult for the appellant to regularise the situation by invoking the remedy provided for the benefit of litigants in his position….,.

In the circumstances, the following order is made:

1. The point in limine be and is hereby upheld.

2. The matter is struck off the roll with costs.

SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

The appellants were employed by the respondent in various capacities. On 18 August 2009, the appellants were given instructions to sign declarations of secrecy following upon the leakage of information of a confidential nature from the respondent's office. All of the appellants refused to sign the declarations and they were charged with disobeying a lawful ...

The appellants were employed by the respondent in various capacities.

On 18 August 2009, the appellants were given instructions to sign declarations of secrecy following upon the leakage of information of a confidential nature from the respondent's office. All of the appellants refused to sign the declarations and they were charged with disobeying a lawful instruction. A second charge, of hindering or obstructing another employee in the performance of his duties, which was preferred against the second appellant, could not be sustained and was dismissed. Following upon disciplinary proceedings, all the appellants were found guilty of the charges and dismissed from employment.

Dissatisfied with their dismissal, they appealed to the Trustee, who is the Minister of Higher and Tertiary Education, in terms of section 44 of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I. 258 of 1996 and were unsuccessful. Dissatisfied with the dismissal of that appeal, they noted an appeal to the Labour Court. They were unsuccessful before the Labour Court which held that there was no right of appeal to the Labour Court provided for in the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258 of 1996.

They have, as a consequence, appealed to this Court.

The appellants have, in their appeal to this Court, raised issues on alleged inconsistencies as relates to the interpretation of sections 2, 3, 12B and 92D of the Labour Act [Chapter 28:01] and section 44(1) of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I. 258 of 1996. The grounds upon which the appeal is premised are the following:

1. The court a quo erred in ruling, as it did, that it had no jurisdiction to hear the appeal by the appellants.

2. Having correctly ruled that the Labour Act [Chapter 28:01] applies to the appellants, the learned president a quo erred in declining to exercise jurisdiction to hear the appeal by the appellants.

3. The court a quo further erred in concluding that section 44(1) of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations 1996 S.I. 258/96 provides that an appeal to the respondent's Trustee is final and un-appealable.

4. The proceedings taken by the Respondent under the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations 1996 S.I.258/96 were null and void ab initio and of no force and effect by virtue of the application of section 5(a) and (b) of S.I.15 of 2006 as read with the peremptory provisions of section 12B of the Labour Act [Chapter 28:01]. Accordingly the court a quo erred in refusing to entertain the appeal.

The learned President in the court a quo found that the Labour Act [Chapter 28:01] applied to the appellants. The learned President was unable to find that the Labour Act [Chapter 28:01] confers jurisdiction on the Labour Court to entertain the appeal principally due to the wording of section 44 of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258 of 1996 which does not bestow a right of appeal beyond that of the Trustee. The finding by the court a quo was to the effect that whilst section 3 of the Labour Act [Chapter 28:01] provided that the Labour Act [Chapter 28:01] applied to all employees except those specifically excluded in the said section, it did not confer jurisdiction upon the court to hear and determine appeals arising out dismissals effected under the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258 of 1996. The court said the following:

“Section 3 does not confer jurisdiction on any court to apply the provisions of the Labour Act. The question we are dealing with here is whether the Labour Court has jurisdiction to hear appeals determined in terms of S.I 258/96 where the Statutory Instrument does not provide for an appeal to the Labour Court? The Labour Court is a creature of Statute and its jurisdiction is derived from the Statute creating it.”

The appellants contend, however, that, notwithstanding the provisions of section 44(1) of the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I. 258 of 1996, under which they were charged with misconduct and dismissed from employment, they are, by virtue of the provisions of the Labour Act, entitled to be heard by the Labour Court by way of appeal and that, consequently, their appeal was properly before the court a quo.

They contend, further, that the inconsistencies within the legislation do not oust the jurisdiction of the Labour Court to entertain their appeal. With regard to the conflict between the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258 of 1996 and the provisions of the Labour Act, it is contended by the appellants that in view of the provisions of section 2A of the Labour Act [Chapter 28:01], the Labour Act prevails over the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258 of 1996, and, consequently, there exists a right of appeal to the Labour Court.

The Labour Court is a creature of statute and can exercise only those powers that it has bestowed upon it by its enabling Act. The powers of the Labour Court in relation to appeals are spelt out in section 89(1) of the enabling Act. They are stated as follows:

The Labour Court shall exercise the following functions:

“(a) Hearing and determining applications and appeals in terms of this Act or any other enactment.”

In my view, the starting point in determining the dispute is section 3 of the Labour Act [Chapter 28:01] which provides as follows:

“3 Application of Act

(1) This Act shall apply to all employers and employees, except those whose conditions of employment are otherwise provided for in the Constitution.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Cap. 16:04].

(3) This Act shall not apply to or in respect of -

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

As is evident from the provisions of section 3, the Labour Act [Chapter 28:01] applies to all employers and employees except for those whose conditions of employment are governed by the Constitution or the Public Service Act [Chapter 16:04]. The precursor to the Labour Act, the Labour Relations Act 16 of 1985, now repealed, provided, in section 3 thereof:

“3. Application of Act

This Act shall apply to all employers and all employees except those whose conditions of employment are otherwise provided for by or under the Constitution.”

As a consequence of the above provision, prior to the promulgation of the Labour Act [Chapter 28:01], in construing the section, courts within this jurisdiction concluded that the Act was not of universal to all employees in Zimbabwe. See City of Mutare v Matamisa 1998 (1) ZLR 512, wherein despite the wording of the section providing that the Act applied to all employees, this court held that it was not obligatory for the City of Mutare to obtain the approval of the Minister as provided for in section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371/1985. Effectively, therefore, the court found that employees of urban councils were not covered by the Act. This decision was followed in Mutare City Council v Mudzime & Ors 1999 (2) ZLR 140.

Subsections 2 and 3 of the current Act were promulgated by Act 7 of 2005, and, as a consequence, with the exceptions of those specifically excluded by the section, all employees were brought under the umbrella of the Act.

In the circumstances of this case, it seems to me that the finding by the court that in terms of section 3 thereof, the Labour Act [Chapter 28:01] applied to the appellants was clearly contradictory to the subsequent finding that the court did not have jurisdiction to determine the appeal filed by the appellants.

It follows, therefore, that under section 89(1) of the Labour Act [Chapter 28:01] employers and employees whose conditions of employment are covered under section 3 of the Labour Act [Chapter 28:01] are impliedly given the right to appeal to the Labour Court. It is only those employers and employees who are excluded by section 3 of the Labour Act [Chapter 28:01] who cannot have access to the Labour Court for the resolution of disputes.

It is the contention of the appellants, which contention finds favour with me, that, notwithstanding the absence of a provision in the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I.258 of 1996 for an appeal process against the decision of the Trustee, the appellants are not deprived of a remedy against their dismissals under the Zimbabwe Manpower Development Fund (Conditions of Service and Misconduct) Regulations S.I. 258 of 1996. The appellants contend that an appeal lies to the Labour Court which has jurisdiction in terms of sections 2A, 3 and 92D of the Labour Act [Chapter 28:01].

The appellants suggest that the failure to provide for an appeal process beyond the Trustee is inconsistent with section 3 of the Labour Act [Chapter 28:01], wherein every employee, except those specifically excluded therein, is provided for. As there is no specific provision denying the appellants a right of appeal to the Labour Court, it is the contention of the appellants that the court has jurisdiction to entertain an appeal under the circumstances of this particular case.

I agree.

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

1. Whether the court could competently convert the appeal proceedings to review proceedings during the preparation of its judgment without affording the appellant an opportunity to make submissions on the proposed course of conduct. It was contended by counsel for the appellant that once the court found that there were no sustainable grounds of ...

It was contended by counsel for the appellant that once the court found that there were no sustainable grounds of appeal it ought to have dismissed the appeal; that the Labour Court has no jurisdiction to mero motu convert an appeal to a review; that since the Labour Court Rules clearly set out the procedure to be adopted on review, the Labour Court, being a creature of statute, had no jurisdiction to convert the appeal to a review; that in any event, the Labour Court erred in law by mero motu converting the appeal into a review without affording the parties an opportunity to make submissions on the issue.

Counsel for the respondent submitted, however, that the Labour Court is empowered by Rule 12 of the Labour Court Rules to proceed as it did. Rule 12 provides:

“12. Informality of proceedings

(1) Subject to these rules, the Court shall conduct any hearing in such manner as it considers most suitable to the clarification of the issues, the fair resolution of the matters, and generally the just handling of the proceedings before it.

(2) The Court shall, so far as appear (sic) to it appropriate, avoid formality in its proceedings and may, where circumstances warrant it, depart from any enactment or rule of law relating to the admissibility of evidence in proceedings before courts of law generally.”…,.

It seems to me that both sub-rules relate to the conduct of a hearing.

It is common cause that the conduct complained of took place after the hearing was concluded and in the absence of the parties. With regard to sub rule (2), the power granted is to depart, not generally from any enactment or law, but from those which relate to the admissibility of evidence in proceedings before courts generally.

Appeals and reviews are governed by Rules 15 and 16. These Rules do not relate to the admissibility of evidence in proceedings before courts of law. They therefore fall outside the bounds of permissible departure demarcated by subrule (2). The Rules provide:

“15. Appeals

(1) A person wishing to appeal against any decision, determination or direction referred to in section 97(1)(a) or (b) of the Act, or on a question of law in connection with any arbitral award in terms of section 98(10) of the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following -

(a) Complete in three copies a notice of appeal in Form LC3; and

(b)…,.

(3) A person making an appeal under this rule who also wishes to seek a review of the proceedings in respect of which he or she makes the appeal shall, at the same time, complete in three copies a notice of review in Form LC4 and serve such notice together with the notice of appeal under this rule.

16. Reviews

(1) A person wishing to seek review of proceedings referred to in section 97(1) (c) or (d) of the Act shall, within twenty-one days from the date when the proceedings are concluded, do the following -

(a) Complete, in three copies, a notice of review in Form LC 4; and…,.”…,.

It is to be noted that the procedures laid down for both appeals and reviews are clearly set out in Rules 15 and 16.

Rule 15(3) sets out the procedure to be adopted by the parties if it is intended to seek a review in conjunction with appeal proceedings. This, undoubtedly, is so that the attention of the other party can be adverted to the fact that both a review and an appeal are contemplated.

Neither the procedure outlined in Rule 16 nor that in Rule 15(3) was adopted by the respondent and I discern no power given to the Labour Court in the Rules to dispense with the procedure as stipulated in these two Rules.

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

This is an appeal against a judgment of the Labour Court dismissing an appeal against an award rendered by an arbitrator. That arbitral award quantified the damages payable to the appellant pursuant to an earlier award ordering his reinstatement into the service of the respondent.BackgroundThe respondent is a statutory body ...

Background

The respondent is a statutory body established under the Agricultural and Rural Development Authority Act [Chapter 18:01].

The appellant was employed by the respondent in January 2008 as its Chief Executive Officer cum General Manager.

On 26 February 2009 he was sent on special leave, and, on 19 May 2009 he was notified by the respondent of its decision to terminate his employment.

The matter was then referred to an arbitrator.

On 26 January 2010, the arbitrator found that the appellant had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator.

On 27 October 2010, the arbitrator quantified his award for damages in lieu of reinstatement. He based his award on a monthly salary of US$1,009 in accordance with documentary evidence furnished by the respondent. He then ordered the respondent to pay the following amounts:

$19,384 as back-pay and benefits from the date of dismissal to the date of his first award;
Cash in lieu of leave;
$60,540 being sixty months salary as damages for loss of employment;
A further $60,540 being sixty months salary as punitive damages for failure to reinstate; and
Interest at the prescribed rate on all of these amounts.

The appellant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the appellant, and challenged the arbitrator's award of punitive damages and his failure to deduct certain amounts allegedly owed by the appellant to the respondent.

Decision Appealed

The court a quo dismissed the appeal and partially allowed the cross-appeal for the following reasons:

It found, having regard to the relevant correspondence, that, the possibility of reinstatement was not part of the arbitrator's mandate. The effective date of termination of employment was 4 February 2010, when the respondent opted to pay damages, and not when the Labour Court ruled against the appellant's reinstatement. The court also found that the arbitrator's reliance on a monthly salary of $1,009 was based on irrefutable evidence and more in accordance with reason, as compared with the figure of $5,000 claimed by the appellant.

As regards the appellant's claim for contractual benefits, no documentary or other evidence was placed before the arbitrator to substantiate that claim.

Again, his claim for punitive damages was neither placed before the arbitrator nor substantiated by any supporting evidence.

Similarly, the respondent's claim to deduct certain amounts owed by the appellant was not raised before the arbitrator.

In the event, the court a quo dismissed the appeal and allowed the cross-appeal to the extent of setting aside the arbitrator's award of punitive damages.

The issues raised in the notice of appeal herein are largely identical to those before the Labour Court and may be summarised as follows:

(i) Whether the question of reinstatement was an issue before the arbitrator, in addition to the quantification of damages in lieu thereof.

(ii) What was the effective date of termination of employment? (This issue was not pursued by counsel for the appellant and appears to have been abandoned).

(iii) What was the correct amount of the appellant's monthly salary?

(iv) Was the appellant entitled to his claim for contractual benefits?

(v) Whether the claim for punitive damages was properly before the arbitrator and correctly awarded by him.

SC22-16 : MICHEAL HENRY BROWNE vs TANGANDA TEA COMPANY
Ruled By: ZIYAMBI JA, GWAUNZA JA, PATEL JA

Constitution of the Disciplinary CommitteeThe appellant alleges that the Disciplinary Committee that found him guilty and imposed the penalty of dismissal was not properly constituted as set out in the respondent's employment Code of Conduct. This was because it did not include a “fellow employee” of the appellant.Paragraph 4.5 of the respondent's Code provides ...

Constitution of the Disciplinary Committee

The appellant alleges that the Disciplinary Committee that found him guilty and imposed the penalty of dismissal was not properly constituted as set out in the respondent's employment Code of Conduct. This was because it did not include a “fellow employee” of the appellant.

Paragraph 4.5 of the respondent's Code provides for the composition of its Disciplinary Committee, in part, as follows:

“4.6 Employee Representation

4.6.1…,.

4.6.2 Managerial employees shall be represented by one fellow employee, or one Managerial Employees' Committee member of their choice.”…,.

It is common cause that the appellant was a managerial employee. He submits, firstly, that the issue was not raised in the court a quo, and, secondly, that it was being and could, properly be raised for the first time on appeal.

Before addressing the appellant's contention in this respect, I find it necessary to consider some salient facts germane to this issue.

Firstly, there is no evidence to suggest that the appellant 'chose' a fellow employee to represent him at the disciplinary hearing, nor that he presented such person to the committee and was turned down. Secondly, and more to the point, there is no evidence to suggest that he challenged the absence of such a fellow employee at the commencement of the very lengthy disciplinary proceedings.

The appellant's counsel effectively confirmed this fact as is evidenced by this exchange during the proceedings in the court a quo…,;

MR KUHUNI:The disciplinary committee was not properly constituted.

COURT: That should have been raised at the hearing; you were involved at the hearing, why did you not challenge the composition at that stage? Why wait to do it on appeal?

MR KUHUNI: No answer.

The record shows that Mr Kuhuni then proceeded to address the court on a completely different aspect of the case. This, in my view, suggests, and the court a quo must have taken it to be the case, that Mr Kuhuni, for the appellant, decided to abandon the argument relating to the constitution of the disciplinary committee. It is pertinent to note that there is also no indication in the appellant's heads of argument in the court a quo, that this matter was raised.

Given this background, I do not find it to be a correct representation of the facts by the appellant, that the point concerning the proper constitution of the Disciplinary Committee was not raised in the court a quo. The matter was clearly not only raised, it was also, in my view, effectively abandoned after the court a quo queried the appellant's failure to challenge the constitution of the disciplinary committee at the commencement of the proceedings. In its judgment, the court a quo made no determination on this issue; in my view, correctly so, since no argument was advanced to enable it to do so. The appellant does not argue before this Court that the court a quo was mistaken in taking this stance. He bases this ground of appeal on the false premise that the point is being raised for the first time on appeal. This I find to be a submission that is both misplaced and unsustainable.

A party cannot abandon an argument, or like in this case, a ground of appeal, in a lower court and hope to validly resuscitate the same ground on appeal to a superior court.

For these reasons, I find that there is no merit in the first issue raised by the appellant, and the ground of appeal related to it is accordingly dismissed.

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order.

Before I consider the merits of the appeal, it is pertinent to address two procedural issues arising from the papers before the court:

(i) Firstly, it was noted, that, the notice of appeal was filed eighteen days after leave to appeal was granted by this court, instead of the fifteen days required by Rule 5(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

However, upon inquiry, counsel for the appellant submitted, that, no hearing for the application for leave to appeal was held since the application was granted on the basis of the papers before the judge in question. The parties only got to hear of the order on a later date.

It is, in my view, important to point out in this respect, that, when an order is made in chambers following a determination of the matter on the papers before the judge, and in the absence of the parties, the Registrar should promptly notify the parties of the order.

This is particularly so, since the dies induciae for any subsequent filing of papers in the matter would start to run from the date of the order, not the date on which the order was served or came to the notice of the parties concerned.

In casu, it was the court's view that since the appellants could not be faulted for the delay in noting the appeal, such late noting could properly be condoned.

SC17-16 : ELSON GUMBO vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA

I begin with the Notice of Appeal attached to the application. It is quoted in extensor; “NOTICE AND GROUNDS OF APPEAL TAKE NOTICE THAT appellant, having been granted leave on the…., day of…., 2014 And tendering all costs for the preparation of the record and any other costs that may be required by law, ELSON GUMBO hereby ...

I begin with the Notice of Appeal attached to the application. It is quoted in extensor;

“NOTICE AND GROUNDS OF APPEAL

TAKE NOTICE THAT appellant, having been granted leave on the…., day of…., 2014

And tendering all costs for the preparation of the record and any other costs that may be required by law, ELSON GUMBO hereby notes an appeal to the Supreme Court against the judgment of the Labour Court attached as Annexure “A” on grounds and issues of law as follows. The appeal is filed against the portion of the judgment, namely, that:-

(a) The appellant did not raise any factual finding that was appealable.

(b) The arbitrator's findings were sound both in fact and law.

GROUNDS OF APPEAL

1. The court a quo erred at law in not finding that the arbitrator grossly erred as to the facts and such gross misdirection amounts to a misdirection as to the law in ignoring crucial facts in favour of the appellant. This relates to whether or not Gambiza, the recipient of the message from appellant, never supplied cement to respondent at any given time so there is no way the text message relating to supply of cement could refer to the respondent thereby violating the confidentiality clause of his employment contract.

2. The court a quo erred and misdirected itself in finding that the arbitrator's findings were sound both in fact and in law, a finding which sharply contracts her own finding that the appellant did not raise any factual finding that was appealable. The appeal was not per se based on a point of law but on the contention of gross misdirection as to the facts which amounts to a misdirection as to the law.

WHEREFORE applicant prays for an order that;

1. The judgment of the Labour Court be and is hereby set aside and substituted as follows:-

(i) The learned arbitrator erred in finding that merely mentioning the word “Marange” in a text message the appellant was referring to the respondent and violated clause 11 of his contract of employment (confidentiality clause).

(ii) The respondent shall pay costs of this appeal.”

Annexure “A” was not attached to the notice of appeal although it forms part of the record and follows the applicant's founding affidavit though not mentioned or identified therein. Ex facie, the document, it is a judgment by the Labour Court refusing leave to appeal.

The Labour Act does not provide for an appeal against a refusal by that court to grant leave to appeal. It provides for an application to the Supreme Court for leave to appeal where the Labour Court has refused such leave. Thus, the appeal could not validly have been noted against the judgment marked “Annexure A”.

The draft notice of appeal does not comply with the Rules of this Court.

It will be noted that the judgment appealed against has not been identified. The date of the judgment has not been indicated. Section 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules requires that the date of the judgment appealed against be set out in the Notice of Appeal.

While there is a judgment marked Annexure B contained in the body of the record, it has not been identified as the judgment sought to be appealed against.

The prayer would not bring finality to the dispute.

SC21-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs MARKO PHUTI
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA

After hearing argument from counsel and following a unanimous decision of the Court, the appeal was partially allowed with costs. We further indicated that the reasons for judgment would follow in due course. Those reasons are as follows. Background The respondent was employed by the appellant as its Operations Manager. He was charged with several ...

Those reasons are as follows.

Background

The respondent was employed by the appellant as its Operations Manager. He was charged with several counts of unsatisfactory work performance. He was subsequently dismissed after having been found guilty by the appellant's Disciplinary Committee. His appeal to the internal Appeals Committee was unsuccessful and the decision to dismiss him was upheld. He then appealed against that decision to the Labour Court.

At the hearing of the appeal before the Labour Court, the appellant herein raised two points in limine;

(i) The first being that the relief sought was not stated in the notice of appeal; and

(ii) The second to the effect that the grounds of appeal were too broad.

The respondent herein countered these objections by applying to amend his notice of appeal so as to incorporate the relief sought.

The Labour Court reasoned that labour disputes should not be decided on technicalities and that it was authorised to condone non-compliance with its Rules. Since no prejudice was alleged or suffered by the appellant, the court condoned the respondent's failure to comply with the Rules and granted the application to amend the notice of appeal. As regards the grounds of appeal, the court found that they were sufficiently clear and had been understood by the appellant.

Consequently, the court dismissed both points in limine.

Turning to the merits, the court a quo assessed all of the evidence before it, including the factual submissions contained in the respondent's heads of argument. The court concluded that the five allegations of unsatisfactory work performance had not been proved on a balance of probabilities and that the Disciplinary Committee had erred in that regard. Accordingly, the appeal was upheld with costs. It was ordered that the respondent be reinstated or, in the event of reinstatement being untenable, that he be paid damages in lieu of reinstatement, to be quantified if necessary

Grounds of Appeal

The first ground of appeal before this Court is that “the court a quo erred in law in failing to find that the purported appeal before it was a nullity.” The remaining four grounds of appeal relate to the factual findings of the court a quo and the consequent alleged misdirections in law.

It is not necessary to elaborate or delve into these grounds, as our decision to allow the appeal turned exclusively on the first ground of appeal.

The gist of the first ground of appeal, as appears from the appellant's heads of argument, is that the notice of appeal before the Labour Court did not contain a prayer and was therefore fatally defective. Since the notice was a nullity, the court had no discretion to condone the defect and proceed as it did to determine the matter on the amended notice of appeal. The appeal should have been struck off the roll and the respondent, if he were so inclined, could then have proceeded to resuscitate his appeal.

In his heads of argument, the respondent takes the position that the court a quo correctly condoned the defectiveness of the respondent's notice of appeal. The court had the requisite discretion to condone any non-compliance with its Rules. In this regard, the appellant has not shown that the court exercised this discretion improperly, and, therefore, there is no basis for interfering with that condonation.

Disposition

In terms of section 49 of the Labour Act [Chapter 28:01], in its relevant portions:

“(1) On an appeal before the Labour Court in terms of section forty-seven –

(a)…,.;

(b) The Labour Court shall, subject to such procedures as may be prescribed, act in such manner and on such principles as it deems best fitted to do substantial justice to the parties, and to carry out the objects of this Act.

(2)…,.”…,.

This statutory injunction, to do substantial justice between the parties, is explicitly reiterated in Rule 26(a) of the Labour Court Rules 2006, which allows the court to depart from the Rules as follows:

“At any time before, or during, the hearing of a matter…, [to] direct, authorise or condone a departure from any of these rules…, in the interests of justice, fairness and equity.”

Counsel for the respondent submits that Rule 15(1)(a) of the Rules simply requires an appellant to, inter alia, “complete in three copies a notice of appeal in Form LC 3.” There is nothing in the Rules, so he argues, that expressly requires the relief sought to be set out in the notice of appeal. He relies in this respect on the decision of this Court in Standard Chartered Bank v Chinyemba 2004 (2) ZLR 197 (S), where it was held that a notice of appeal is not fatally and incurably defective merely because it does not set out the relief that is sought.

Counsel for the appellant submits that the court a quo accepted that the absence of any prayer in the notice of appeal before it amounted to a defect that rendered the notice a nullity. Nevertheless, the court proceeded to condone this fundamental irregularity. This constituted a clear misdirection on its part. He also argues that Standard Chartered Bank v Chinyemba 2004 (2) ZLR 197 (S) is distinguishable from the present in that the former did not specifically address the question of compliance with the Labour Court Rules.

In Standard Chartered Bank v Chinyemba 2004 (2) ZLR 197 (S), the Court was seized with the interpretation and application of the Labour Relations (Settlement of Disputes) Regulations 1993 (since repealed and replaced by the Labour (Settlement of Disputes) Regulations 2003). The appellant's contention was that the impugned notice did not set out the relief sought and was therefore fatally defective. The Labour Relations Tribunal dismissed this point in limine on the basis that in terms of section 14 of the Regulations it was empowered to seek clarification in respect of notices of appeal which were not clear. The Tribunal concluded that this provision gave litigants an opportunity to cure defective notices of appeal at the hearing of the matter and that, consequently, any defect in a notice of appeal cannot be fatal. The Supreme Court agreed with the conclusion of the Tribunal that the alleged defect in the notice of appeal was not fatal. It was noted that the 1993 Regulations set out the procedures to be followed on appeal. However, unlike Rule 29(1) of the Supreme Court Rules 1964, the Regulations did not prescribe the contents of a notice of appeal. It was accordingly held that, on a proper reading of the Regulations, the lawmaker intended to allow for a certain amount of latitude in respect of proceedings before the Tribunal.

In my view, the critical distinction, in casu, is that the Labour Court Rules now in force are not silent as to the contents of a notice of appeal. In addition to setting out the procedure to be followed on appeal, Rule 15 clearly prescribes the contents of a notice of appeal by specific reference to “a notice of appeal in Form LC3.”

I note that Rule 37, which governs the completion of forms prescribed by the Rules, allows some measure of flexibility in that regard. It provides that:

“(1) Subject to this rule, a person required to complete any form prescribed in the Schedule may improvise it by making such alterations to it as circumstances require.

(2) The Registrar may refuse to accept any improvised form and require the party improvising it to submit another form substantially compliant with that prescribed in the Schedule if the Registrar is of the opinion that the improvised form is not so compliant.

(3) Where a dispute arises as to the discretion exercised by the Registrar under subrule (2), the Registrar shall refer the matter to a President in chambers who may thereupon –

(a) Direct the Registrar to accept the improvised form; or

(b) Direct the party who improvised the form to submit another form substantially compliant with that prescribed in the Schedule; or

(c) Give such other directions as to the manner in which the parties may proceed as the President thinks fit in the circumstances.

(4) All forms in terms of these rules that are out of print or otherwise unavailable may be issued by the Registrar, who may omit any explanatory notes or other irrelevant matter therefrom.”

It is trite that the Labour Court is entitled to dispense equity in its duty to do substantial justice between the parties. However, it cannot do so outside the confines of the law. Although section 49(1)(b) of the Labour Act [Chapter 28:01] allows for flexibility and latitude in the exercise of the court's functions, it is still required to act subject to such procedures as may be prescribed, i.e. in accordance with the Labour Act and the Labour Court Rules.

Rule 15(1)(a) of the Labour Court Rules requires a prospective appellant to complete a notice of appeal in Form LC 3. This form prescribes the details of an appeal that must be set out in the notice as follows:

(i) The determination and authority appealed against.

(ii) The date of issuance and service of the determination appealed against.

(iii) A brief statement of the facts and grounds on which the appeal is based. (If the space provided is inadequate, details of the grounds of appeal may be attached in a separate document).

(iv) The form of the relief sought from the Labour Court (as indicated in separate boxes to be ticked or as otherwise specified).

(v) Name and address of the appellant's legal practitioner or representative.

(vi) List of witnesses to be summoned to attend the hearing.

The notice of appeal, in the instant case, lists the name of the appellant, the dates when the determination appealed against was issued and served, and the names and addresses of the parties' respective legal practitioners. There is no indication of the actual determination appealed against or of the form of relief sought from the Labour Court. The grounds of appeal are set out in a separate document attached to the notice. The three grounds of appeal therein obliquely provide some indication of the determination appealed against. However, the precise relief sought from the Labour Court is not mentioned at all.

In my view, the omissions that I have identified in the notice of appeal are critical and cannot be regarded as being mere technicalities. Nor can it be said that the respondent has simply improvised the notice by making appropriate alterations to the prescribed form. Taken in its entirety, the notice is not “substantially compliant” with the form prescribed in the Schedule within the contemplation of Rule 37. Consequently, the court a quo seriously misdirected itself by condoning the respondent's flagrant disregard of the Rules and granting the application to amend the notice of appeal before it.

For the foregoing reasons, the appeal was partially allowed and the following order was made:

1. The appeal is allowed with costs on the first ground of appeal set out in the notice of appeal.

2. The judgment of the Labour Court is set aside and substituted with the following:

“The appeal is struck off the Roll with costs.”

SC53-16 : PG INDUSTRIES (ZIMBABWE) LIMITED vs MARK BVEKERWA and 34 OTHERS
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

On 1 November 2013, the Labour Court granted a chamber application in favour of the respondents for the amendment of their notice of appeal. This is an appeal against the order granting the application. THE FACTS The appellant is a company duly registered in terms of the laws of Zimbabwe. The respondents were formerly employed by ...

On 1 November 2013, the Labour Court granted a chamber application in favour of the respondents for the amendment of their notice of appeal.

This is an appeal against the order granting the application.

THE FACTS

The appellant is a company duly registered in terms of the laws of Zimbabwe. The respondents were formerly employed by an entity known as PG Merchandising Limited trading as PG Timbers (hereinafter referred to as PG Timbers). It is not in dispute that the appellant was the holding company for a number of entities of which PG Timbers was one. PG Timbers has ceased to exist. The exact circumstances thereof are not before the court.

The respondents lost their employment with PG Timbers some time before its demise. It was alleged against the respondents that they had taken part in an illegal collective job action on 30 November 2011. The action was aimed at coercing their erstwhile employer into increasing their wages in line with the recommendations of the National Employment Council. The respondents alleged that after the collective job action they were denied entry into the premises. They applied for a show cause order under the Labour Act [Chapter 28:01] (“the Act”) which was dismissed by the relevant Minister.

In the meantime, the employer charged the respondents with contravening section 7.1.4(viii) of the PG Industries (Zimbabwe) Code of Conduct, ('the Code'), 'for participating in an unconstitutional industrial action.' They were served with notices to attend disciplinary hearings before the disciplinary committee. The respondents deliberately boycotted the process. They were convicted in absentia. They were all dismissed from employment upon conviction.

Section 10.1 of the PG Industries (Zimbabwe) Code of Conduct requires that an aggrieved employee seek leave to appeal internally within six working days of the date of the decision sought to be appealed against. The respondents only sought leave after a period of three months. Subsequent to the noting of the application for leave, they made an application for condonation for the late noting of the application for such leave. The Appeals Committee before whom the condonation was sought was chaired by Caroline Mapupu, the appellant's Group Human Resources Executive. On 22 May 2012, the committee handed down its decision dismissing the application for condonation.

The respondents were aggrieved by the dismissal of the application and noted an appeal with the Labour Court on 17 June 2012. The form LC 3, which constituted the notice of appeal cited the appellant as the respondent. Attached to the form LC3 were grounds of appeal wherein the respondent was cited as PG Timbers.

The appellant raised a preliminary point in its notice of response.

It pointed to the citation of two different respondents on the form LC 3 and the grounds of appeal. The manner of citation created confusion as to which respondent was being brought to the Labour Court on appeal. Consequently, the identity of the respondent, as employer, was critical in the determination of the appeal.

The respondents were put on notice to properly identify the correct respondent to the appeal.

No action was taken by the respondents, and, on the date of hearing, the appellant raised the preliminary point with the court. The respondents argued that the citation of different parties on the documents was a mere technicality which could not stop the court from delving into the merits of the dispute. On 2 August 2013, the court a quo handed down its judgment. It held that the respondents had made an error in citing the two entities in the manner they did. The court held that the error could be corrected and ordered the respondents to make an appropriate application for amendment of the notice of appeal and grounds thereof.

On 13 September 2013, the respondents filed a chamber application for amendment of the notice and grounds of appeal. In both documents, the appellant was cited as the respondent. The record indicates that the application was served on the appellant's legal practitioners.

The application was opposed by the appellant.

On 11 November 2013, the application was granted in chambers. There is no indication that the parties appeared before the learned judge before the order was granted. No reasons for the order were made available to the parties.

THE APPEAL

The appellant was aggrieved and, with the leave of the court a quo, it has noted an appeal against the order of 11 November 2013. The ground upon which the appeal is premised is captured as follows:

“The court a quo erred by granting the amendment by the respondents, which amendment has the effect of making the appellant a party to the employment dispute in question yet the appellant has never at all material times been the respondents' employer. Accordingly, the appellant has been wrongly cited as a party to the dispute.”

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

Rule 15(1) of the Labour Court Rules provides for 21 days to note an appeal once one has received the decision.

SC64-17 : THOKOZILE ZINONDO vs CAFCA LIMITED
Ruled By: GWAUNZA JA

It is trite that an applicant seeking leave to appeal must establish that he has prospects of success on appeal. In the words of GARWE JA in Chikurunhe and Ors v Zimbabwe Financial Holdings SC10-08; “The party seeking leave must show, inter alia, that he has prospects of success on appeal. In other words, ...

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

Section 92E of the Labour Act [Chapter 28:01] provides as follows: “Section 92E: Appeals to the Labour Court generally: (1) An appeal in terms of this Act may address the merits of the determination or decision appealed against. (2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision ...

Section 92E of the Labour Act [Chapter 28:01] provides as follows:

“Section 92E: Appeals to the Labour Court generally:

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.”

Section 92E(2) of the Labour Act [Chapter 28:01] only provides that the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against. The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision. The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of the appeal.

Section 92E(2) of the Labour Act [Chapter 28:01] does not impose an obligation on a party appealing against the determination or decision to act in terms of the determination or decision appealed against pending determination of the appeal. In other words, there is no provision requiring the appellant to first comply with the determination or decision appealed against in order to preserve the right of appeal.

There are remedies available to a party in whose favour the determination or decision appealed against has been made for its enforcement in the absence of an interim determination made by the Labour Court suspending the determination or decision appealed against pending determination of the appeal. The effect of the section is that it leaves the party in whose favour the determination or decision was given with a right to enforce the determination or decision appealed against by having it registered with the High Court or any Magistrates Court in terms of section 98(14) of the Labour Act [Chapter 28:01].

Section 92E(3) of the Act has no effect at all on the right to appeal.

It leaves the appellant with a right to apply for an interim determination suspending the execution of the determination or decision appealed against. The right holder may exercise the right or choose not to do so. He or she is not obliged to apply to the Labour Court for an interim determination. The fact that a party has opted, in the exercise of discretion, not to exercise a right given by law does not mean that he or she is guilty of approaching the court with dirty hands. Both parties are equally protected by the law as they have remedies available to them.

When the Labour Court refuses to hear an appeal on the basis that the appellant has not complied with the determination or decision appealed against, it is creating a remedy not provided for by the law.

HH40-15 : DAVID JOHN CARROLL vs STEELBASE ZIMBABWE (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

By virtue of the provisions of section 98(10) of the Labour Act [Chapter 28:01], an appeal against the decision of an arbitrator lies to the Labour Court. In terms of section 92E(2) of that Act, such an appeal does not suspend the decision appealed against.

HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA
Ruled By: MATHONSI J

Section 171(1)(b) of the Constitution provides that the High Court may only exercise appellate jurisdiction conferred to it by an Act of Parliament. See also section 30(1) of the High Court Act [Chapter 7:06].

SC29-18 : RESERVE BANK OF ZIMBABWE vs T. LLOYD MUFUDZI and RICHARD USEYA and NYASHA CHIKAZAZA and WARAIDZO TANDI
Ruled By: GOWORA JA, BHUNU JA and ZIYAMBI AJA

In terms of the Labour Act [Chapter 28:01] an appeal on a point of law only, lay, with leave, to the Supreme Court. Any application for leave was to be made within 30 days of the date of the judgment. See Labour Court Rules 2006, Rule 36….,.

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

It was true that what was pending at the Labour Court, at the time of the applicant's urgent chamber application before me, was merely an application for leave to appeal and not the appeal itself. However, given that there is no automatic right of appeal from a decision of the Labour Court to the Supreme Court, ...

CC14-19 : GARIKAI KAMANGA vs PRINCE EDWARD SCHOOL – SDA
Ruled By: MALABA CJ and GARWE JCC and MAKARAU JCC

The Supreme Court concerns itself with the correctness or otherwise of the decision of the Labour Court…,. The position is clearly set out in the Labour Act [Chapter 28:01] as follows: “92F Appeals against decisions of Labour Court (1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the ...

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

Section 70(1)(m) of the Constitution provides that an accused person has the right “not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;” Further, section 70(5) provides that; “(5) Any person who has been tried and convicted of an ...

Further, section 70(5) provides that;

“(5) Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to —

(a) Have the case reviewed by a higher court; or

(b) Appeal to a higher court against the conviction and sentence.”

Section 33(2) of the Police Act [Chapter 11:10] gives the right to appeal to the High Court only to members convicted of a disciplinary offence by a Board of officers, not by a single trial officer. It is thus clear that an appeal from a single trial officer only lies to the Commissioner General of Police and not to the High Court….,.

The law does not grant jurisdiction to the High Court to hear appeals from decisions of the single trial officers. Section 34(7) of the Police Act [Chapter 11:10] only provides for the appellate jurisdiction of the Commissioner General from decisions of single trial officers.

The applicant argues that, because the right of appeal to the High Court is not specifically prohibited, in circumstances where section 70(5) of the Constitution provides that any person who has been convicted of an offence has the right to appeal to a higher court, this means that police members convicted by single trial officers are entitled to appeal to the High Court in terms of section 70(5). For this proposition, he relied on some decisions of this court which found the Police Act to be inconsistent with section 70(5) of the Constitution. See Sadengu v Board President & Anor HH712-15.

It is my view that the applicant's position is a mis-interpretation and mis-application of the law.

(i) Firstly, reliance on Rateiwa v Kambuzuma Housing Coop & Anor 2007 (1) ZLR (H)…, for his proposition is misplaced. That case is distinguishable because GOWORA J…, was speaking to the inherent jurisdiction of the High Court as a court of first instance, not to its appellate jurisdiction, which is not inherent.

(ii) Secondly, section 70(5) of the Constitution does not provide for the manner in which to bring an appeal to the High Court, nor does it provide for the power of the High Court to deal with any appeal. It only creates a general right of appeal and provides that the right to appeal provided therein is subject to any limitations prescribed by law.

Section 171(1)(d) of the Constitution goes on to explain and prescribe those limits to the right enshrined in section 70(5) by providing that the appellate jurisdiction of the High Court must be prescribed by an Act of Parliament. Thus, section 70 and section 171 of the Constitution are not mutually exclusive, but complement each other. Section 70 provides the broad framework upon which the right to appeal is founded, while section 171 distils the broad rights in section 70 to only those instances where an Act of Parliament then ascribes specific appellate jurisdiction.

Nor is Sadengu v Board President & Anor HH712-15 helpful to the applicant's cause as section 70(5) of the Constitution merely creates a right but does not prescribe how that right is to be accessed. Section 171 of the Constitution does so, by providing that an Act of Parliament will delineate the appellate jurisdiction of the High Court. As a consequence, the Legislature, in enacting the Police Act could have prescribed the appellate jurisdiction of the High Court for police disciplinary matters emanating from single trial officers, but deliberately refrained from doing so. While the High Court Act does prescribe for the appellate jurisdiction of the court, in section 30 and section 34, it goes on to limit such jurisdiction to the same extent as section 171(1)(d) of the Constitution: that such appellate jurisdiction will only be exercised as provided for by an enactment, or by the High Court Act itself.

Therefore, the provisions with regard to the appellate jurisdiction of the High Court vis-à-vis trials from single trial officers must be read in pyramidal fashion, starting from the wide base: section 70, as limited by section 171 of the Constitution, and, further limited by section 30 and section 34 of the High Court Act, and, finally, section 34(7) of the Police Act….,.

While the right to appeal exists in general terms, as provided for in the Constitution, the complainant in this case is prevented from enjoying this right. Such interference is prescribed by law, viz: section 171 of the Constitution, section 30 and section 34 of the High Court Act and section 34(7) of the Police Act.

Such interference is compatible with constitutional and even international treaty obligations since the right is not absolute but is subject to any limitations prescribed by law.

In order to test whether the legal prescription for the interference is appropriate, it then becomes necessary to inquire whether such interference pursues a legitimate aim.

From the concession made by counsel for the applicant, single officer trials number in their thousands. He alone deals with at least 1,200 per year. He conceded that, were appeals to be allowed to the High Court from these single officer trials, the burden of the High Court would be untenable and interfere with swift and efficient dispensation of justice. He also conceded that the jurisdiction of single trial officers is limited to very minor and simple infractions which call for fast and streamlined procedures, the consequence of which are minor punishments not exceeding level 2 fines or 14 days imprisonment. Given that these disciplinary convictions and punishments do not count for purposes of any other law (section 34(9) of the Police Act [Chapter 11:10]) it is obvious therefore that limiting the right of appeal from single officer trials is both desirable and legitimate and is in the best interests of effective dispensation of justice.

The sheer numbers of the trials make it necessary in a democratic society to expeditiously deal with and finalise these minor matters, leaving the High Court to deal with weightier cases. In addition, the fact that there is a right of automatic review by, and appeal to, the Commissioner General, in circumstances where the member may also opt to seek direct review by the High Court, means that there is adequate proportionality between the interests of the member and the wider interests of justice. Further, in view of the fact that these single trial officer processes are aimed at promoting efficient and sound administration of a disciplined police force, it is not unreasonable to allow the authorities the margin of appreciation to enable the Commissioner General to manage his police force, moreso, given that there is no individual excessive burden militating against the rights of the members.

Consequently, I find that the right to appeal is not violated as direct appeals from the single trial officer to the High Court would militate against an end to litigation. Further, the sheer volume of single officer trials would completely swamp the High Court were appeals therefrom to be referred to the Court as a matter of course. A filtering system, as is currently in place, is, therefore, necessarily desirable and legitimate in a democratic society….,.

The Police Act does not provide for any right of appeal to the High Court against the decision of the Commissioner General, either sitting on review or appeal, of decisions of a single trial officer, or discharging his administrative function as the executive authority for the police force. Given the specific provisions of section 171 of the Constitution and section 30 and section 34 of the High Court Act, that any appellate jurisdiction must be specifically enacted, I cannot agree with counsel for the applicant that the absence of a specific bar against such appellate jurisdiction is tantamount to a right of appeal.

Rights are not endowed by default but must be specifically created….,. The right does not exist as there is no law creating any appellate jurisdiction from decisions of the Commissioner General in disciplinary matters. Thus…., the decision of the Commissioner General is final and can only be set aside by the High Court on review.

I will not delve into whether the administrative decisions of the Commissioner General are appealable in terms of Administrative Law as that is not a question under the purview of the court in casu. Suffice it to say that section 51 of the Police Act [Chapter 11:10] does provide that appeals from the administrative decisions of the Commissioner General lie to the Police Service Commission, not to the High Court.

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

“This matter demonstrates the challenges which emerge from parties pursuing the same issue before different judges who may each be seized with different aspects of their appeals. The result is divergent judgments from the same court. Whereas CHIVIZHE J made a finding that bonus is payable at the discretion of the employee and is not an entitlement, ...

SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE
Ruled By: MALABA CJ, GUVAVA JA and BERE JA

The requirement for a litigant who is represented to file heads of argument is captured in Rule 26(1) of the Labour Court Rules, 2006 which states as follows: “(1) Where an applicant or appellant is to be represented by a legal practitioner or representative at the hearing of the application, appeal or review, the legal practitioner or ...

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe dated 14 July 2018 wherein an application for condonation for failure to file an application for leave to appeal in time was dismissed.

Briefly, the background to this matter is as follows:

The respondent was employed as an accountant by the appellant. He was charged with misconduct, that is, wilful disobedience of a lawful order given by the employer. The respondent was found guilty and his contract of employment was terminated.

The respondent then appealed to the Labour Court which upheld his appeal on 8 April 2016.

In terms of section 35 of S.I.59 of 2006 the appellant ought to have sought leave to appeal to this Court within 30 days from the date of the judgment of the Labour Court.

Having failed to observe the prescribed time limits the appellant sought condonation for the late noting of its application for leave to appeal before the Labour Court.

In deciding the application for condonation, the Labour Court concluded that the appellant had not been candid with the court on its explanation for the delay. The court held that it was unnecessary for it to deal with the other principles applicable in applications for condonation. The court proceeded to dismiss the application for condonation before it with costs.

It is this finding of the court a quo which has led to this appeal.

The appellant, having obtained leave to appeal to this Court on 24 November 2017, noted this appeal on the grounds stated hereunder:

“1. The Labour Court erred in law in its refusal of the application for condonation for failure to comply with the Rules on the basis that there were 'no compelling circumstances which justified a finding in Applicant's favour', when such is not the test applicable in an application such as the one which was before the court.

2. The Labour Court erred in law, in finding that it was unnecessary to consider all the principles applicable in an application such as the one that was before it, with the result that the court did not consider all the other factors which weighed heavily in favour of the application being granted.”

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in dismissing the application for condonation.

THE LAW

The issue that arises from these grounds of appeal is whether the test applicable in matters for condonation was properly applied to the facts of this present matter by the court a quo.

The requirements for condonation have been set out in a plethora of cases, including the case of Bessie Maheya v Independent Africa Church SC58-07. In that case, the court stated the following:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed, one against the other, are:

(i) The degree of non-compliance;

(ii) The explanation therefore;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) The avoidance of unnecessary delays in the administration of justice.”…,.

A reading of the record shows that the court a quo took into account one of the requirements to be considered in an application for condonation. Consequently, the enquiry that the court a quo made was inconclusive.

The court only considered the extent of the delay and ended there. It did not have regard to the other considerations for the granting of condonation. This is apparent from the judgment of the court a quo where the learned judge concluded her judgment by stating:

“I am convinced that this is a case in which the sins of the legal practitioner are visited on the client. I therefore do not consider it necessary to deal with whether or not other principles applicable in condonation are favourable to applicant.”…,.

Issues to do with the prospects of success on appeal, the importance of the case, the respondent's interests in the finality of the judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice were completely brushed aside by the court a quo. See Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

The finding that the explanation for the delay was unreasonable became the basis for the court a quo's justification in not considering the other factors that ought to be taken into account in condoning a party who is in breach of the Rules.

With this finding, the court a quo resorted to visiting the sins of the legal practitioners on the client and dismissed the application for condonation.

In light of the above, counsel for the appellant argued that as the court a quo had failed to consider all the requirements for condonation, cumulatively, the appeal had to be allowed.

Per contra, counsel for the respondent contended that the court a quo had power to exercise its discretion in such matters even without considering all the laid down requirements. He further argued that this could be done without taking into account the merits of the matter hence the appeal lacked merit.

I do not agree with this proposition of the law.

It was incumbent upon the court a quo to deal with all the considerations in the determination of the application for condonation. Failure to do so was a misdirection on the part of the court. It ought to have first applied the laid down principles to the facts of the case before proceeding to justify the stance it took in opting to dismiss the application for condonation.

In the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A)…, the principles of the law are re-stated as follows:

“It is well established that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that, in essence, it is a question of fairness to both sides.

In this enquiry, relevant considerations may include the degree of non compliance with the Rules, the explanation therefor, the prospects of success…, (on the merits), the importance of the case, the respondent's interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation may help compensate for prospects of success which are not strong.”…,.

Condonation remains a sole discretion of the court, which discretion has to be exercised judicially upon a consideration of all facts, at all times with a view of doing justice between man and man.

A reading of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A) shows that such exercise of discretion must be done after a consideration of all the relevant factors.

The case of Ngirazi v Saurosi & Anor HB84-18 exhibits how the courts weigh the factors one against the other in granting condonation. It was stated as follows:

“It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance.

As stated by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O. 1966 RLR 60 (AD)…,;

'.., the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be before the delay will be condoned; and the converse must of course be equally true; the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.'”

See also Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,.

It is apparent from the above cases that all the laid down factors ought to be taken into account when dealing with an application for condonation.

This was not done in the application a quo.

Instead of individually dealing with these factors, and weighing them one against the other, the court a quo opted to deal with only the explanation for the delay.

This was a misdirection on the part of the court a quo.

In the case of Tshova Mubaiwa Transport Co-Operative Limited and Ors v Mpofu and Ors HB167-04, it was further stated that;

“While these courts have on many occasions held that a litigant chooses his legal representative and it is through that choice that he should either succeed or fail in that litigation. However, this approach should not be adopted as a cut and dry principle. Applicant's explanation, together with other factors supra, should also be considered…,. Therefore, to allow one party to find a way out of the problem through a technical fault will be a failure by these courts to do justice between man and man.”…,.

The court a quo failed to determine the issues that were before it. It failed to make a determination on whether or not the appellant had satisfied all the requirements for condonation. This was a serious mis-direction that warrants interference by this Court.

This is a case where a remittal of the matter to the court a quo for a consideration of all the requirements for condonation to be done. Those principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weaknesses or lack of merit in the other laid down principles.

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside.

3. The matter is remitted to the court a quo for consideration of the proper requirements for condonation.

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.THE BACKGROUNDThe appellant was employed by the respondent as a Secretary General. On 2 June 2012, the ...

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.

THE BACKGROUND

The appellant was employed by the respondent as a Secretary General. On 2 June 2012, the National Governing Council (the Council) of the respondent held a meeting in which Council members expressed concerns regarding the performance, by the appellant, of her work. As a result, it was recommended that the appellant be suspended from work pending investigations into her conduct, or, alternatively, that she be given the option to resign.

The appellant elected to resign and did so by letter dated 3 June 2012.

On the same date the resignation was acknowledged, in writing, by the respondent's Acting President. The following was set out in the letter;

“The Board resolved that in the event of you resigning, instead of a suspension with pay, that you will be entitled to all your benefits. Outlined hereunder are all your benefits; Leave days accrued; Gratuity One month's notice salary; Toyota Prado registration number ABH3278 that you have been using; Phone handset; Laptop you are currently using.”

On 6 June 2012, the Honorary Treasurer of the respondent, one Mr Gotora, who was tasked with overseeing the handover takeover process between the appellant and the new office bearer, wrote a letter to the appellant stating that the respondent was to meet the costs related to the change of ownership of the vehicle.

As a result, the appellant made a claim of US$17,500, being the residual duty payable to ZIMRA upon the disposal of the vehicle by the respondent, that is, the cost of the change of ownership.

On 2 March 2013, the Council convened a meeting to deliberate on the appellant's claim.

Mr Gotora was reprimanded for generating the communication as he had no authority to do so. It was stated that considering the level of the employee in issue, communication was to be done by either the President or the Secretary General.

On 5 March 2013, Mr Gotora wrote a letter to the Acting President and copied same to the appellant, retracting the statement that he had made regarding the respondent meeting the change of ownership costs for the motor vehicle. He also conceded that he had acted without the mandate of the Board.

Following the retraction, the appellant referred the matter to a Labour Officer claiming the sum of US$17,500 from the respondent.

Conciliation failed and the matter was referred to an arbitrator who ordered the respondent to honour the undertaking made on its behalf by the Honorary Treasurer. The arbitrator held that the Honorary Treasurer's undertaking remained valid and binding on the respondent. He referred to the case of Royal British Bank v Turquand (1856) 6 E & B 327, ER 886 and reasoned that the appellant was not supposed to know the legitimacy of the undertaking made by the Honorary Treasurer on behalf of the respondent. As such, the Honorary Treasurer bound the respondent.

Aggrieved by the arbitral award, the respondent appealed to the Labour Court.

It challenged the decision of the arbitrator on the basis that the communication in issue had been made without the approval of the Board, and that, in any event, the communication had been retracted and could not be given effect to. The respondent further argued that there was no basis for the arbitrator to rely on the letter by Mr Gotora as it could not give benefits not outlined in the initial letter by the Acting President wherein all the benefits due to the appellant had been expressly stipulated. Further to that, the practice was that employees who received such a benefit would meet their own costs of transfer.

The respondent also expressed the view that the Turquand Rule was inapplicable because the appellant knew or ought to have reasonably known that the Honorary Treasurer was not an executive member and could not make binding decisions on behalf of the respondent.

The respondent also averred that, should the amount be due, it was payable to the Commissioner or ZIMRA and not to the appellant.

The respondent also contended that the arbitrator had cast upon it an obligation cast by law on a transferee of property.

The appellant opposed the appeal.

She contended that the respondent sought to interfere with the findings of fact made by the arbitrator. She argued that the arbitrator correctly found that the undertaking was never retracted and remained valid. The appellant further contended that the undertaking to pay the transfer costs was an employment benefit, and, as such, arguments on the law of transfer or taxation were irrelevant.

DETERMINATION OF THE COURT A QUO

The court a quo found that the appellant was not entitled to the transfer costs of the motor vehicle. It held that the communication by the Honorary Treasurer could not bind the respondent. It found that the turquand rule was in-applicable and neither could it be said that Mr Gotora had ostensible authority to bind the respondent.

The court reasoned that the appellant was not some innocent third party but occupied the highest post in the respondent and was aware or ought to have been aware of the authoritative communications in the organisation.

The court further explained that even if it was to be assumed that Mr Gotora was acting under delegated authority, there was no evidence of such delegation.

In any event, Mr Gotora had also confirmed that he had made the communication without the required authority.

The court also noted that the letter of 3 June 2012, by the Acting President, which set out all the benefits the appellant was to get, made no mention of transfer costs. As such, Mr Gotora's letter could not be read to vary or supplement the package already offered to the respondent by the Board and properly transmitted to the respondent by the Acting President.

The court further held that the transfer costs were payable to the Zimbabwe Revenue Authority and not the respondent.

It also found that there was no law that precluded parties to deviate from the provisions of the Customs and Excise Act [Chapter 23:02] by paying another's transfer costs since what the law requires is that the transfer costs be paid.

The appellant, dissatisfied with the outcome, launched the present appeal based on the following grounds:

GROUNDS OF APPEAL

1. That the court a quo erred in granting the respondent's appeal as regards the award of US$17,500 and thus upsetting, without legal basis, the arbitrator's factual finding that the evidence furnished by the respondent to prove the Treasurer's lack of authority was stage-managed.

2. That the court a quo grossly erred in interfering with the arbitrators discretion to award the appellant US$17,500 as evidence placed before him showed that there was never any valid retraction on the respondent's commitment to pay the US$17,500.

3. That the court a quo grossly erred in granting the respondent's appeal with respect to award of US$17,500 as the finding by the arbitrator that the undertaking to meet the costs of transfer was validly made cannot be faulted given that the respondent accepted provisions in the letter of undertaking by the Honorary Treasurer.

4. That the court a quo grossly erred in granting the respondent's appeal with respect to the award of US$17,500 as it erroneously made a finding that the mention of ZINARA cost instead of transfer costs in the letter of retraction by the Honorary Treasurer was an error by the respondent when no such evidence of a mistake or error was alleged or argued before it by the respondent or any of the parties.

5. That the court a quo erred by making a finding that the US$17,500 should have been paid to the Zimbabwe Revenue Authority and not to the appellant when such issue was not properly before the court a quo in terms of the grounds of appeal that were before it, and, when such issue did not affect the appellant's eventual entitlement to the benefit.

SUBMISSIONS IN THIS COURT

At the hearing of the appeal, counsel for the respondent raised a point in limine to the effect that the appeal was invalid for the reason that the appellant's Notice of Appeal reflected that the appeal was against part of the judgment of the court a quo when essentially the appeal is against the entire judgment. She moved that the appeal be struck off the roll with costs.

On the other hand, counsel for the appellant submitted that there was a concession made in the court a quo regarding the pension issue. Therefore, the appeal before the court a quo succeeded in part. The appellant was therefore appealing against the one part regarding the claim of US$17,500.

The point was conceded by counsel for the respondent.

As a result, by consent, the point in limine was dismissed.

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014, dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.

The facts of this application are common cause.

The applicant was employed as a Senior Security Officer by the respondent. Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment. It was a condition of the Reserve Bank that for the applicant, and others similarly placed, to access the money owed, they had to make an application showing good cause. A death or illness in the family could constitute such good cause.

In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3,500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.

It is the applicant's intention to appeal against the decision of the Labour Court.

I cite here, in full, the grounds of the intended appeal. They are framed as follows:

1. The court a quo erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (sic).

2. The penalty imposed on the appellant was a nullity in that there was no compliance with the respondent's Code of Conduct requiring that the Worker's Committee be consulted before such a penalty is imposed.

3. Alternatively, the court a quo erred on a point of law in that it was at large to interfere with the penalty of dismissal because there was no compliance with the respondent's Code of Conduct requiring that the Workers' Committee be consulted before a penalty of dismissal is imposed.

4. Alternatively, the court a quo misdirected itself on a point of law in refusing to interfere with the penalty of dismissal upon a finding that the circumstances of the matter merited a less severe penalty.

The application for leave to appeal was opposed on the basis that the intended grounds of appeal did not disclose any basis upon which the refusal by the Labour Court to interfere with the penalty imposed by the employer could be challenged or could be regarded as an error at law. Accordingly, and in short, it was argued that the appeal had no prospects of success.

At the hearing of the application, without abandoning the other grounds, counsel for the applicant restricted his argument to the last ground of appeal as one that might enjoy some prospects of success on appeal.

I pause to note, in passing, that counsel for the applicant was wise in not expending his energies on the first three grounds of the intended appeal.

The first ground is ill-conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court, was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.

The second and third grounds of appeal are inter-related, not only because they are raised in the alternative but also because they seek to raise the same issue. This is in relation to the irregularity allegedly attendant upon the imposition of the penalty of dismissal.

It was alleged by the applicant, and denied by the respondent, that the Worker's Committee was not consulted before the penalty of dismissal was imposed.

For the purposes of this application, it is not necessary that I determine whether the Workers Committee was consulted or not before the applicant was dismissed. This is so because not only was this an issue that should have been properly brought in an application for review before the Labour Court, but, more importantly, it was never brought to the attention of the court, which, as a result, did not make any findings on it. Therefore, the court could not have erred as alleged or at all in respect of an issue that was not before it and one that it did not determine.

I now turn to the argument on the fourth ground.

Accepting as the correct position at law that an Appeal Court should be slow in interfering with findings of fact and the exercise of discretionary power by a lower court, counsel for the applicant submitted that this position does not hold for the Labour Court when exercising its appellate jurisdiction.

This is so, he argued, because the Labour Court is not an Appellate Court strictu sensu in that the enabling Act empowers it to hear matters brought before it on appeal, de novo. It is therefore not confined to determining the matter on the basis of the record before it but can lawfully act as a court of first instance. Further, he submitted that whilst the Labour Court has appellate jurisdiction, the Labour Act [Chapter 28.01] that grants it this jurisdiction also enjoins the court to infuse the equities of the dispute into the resolution of all matters brought before it - appeals included.

The argument by counsel for the applicant has no prospects of success on appeal.

This is so because the Supreme Court, has, in several cases, pronounced itself on the law regarding the exercise of appellate jurisdiction by the Labour Court in matters relating to penalties. This it has done notwithstanding the provisions of section 2 of the Labour Act [Chapter 28:01] which the applicant sought to rely on; see Mashonaland Turf Club v George Mutangadura 2012 (1) ZLR 183 (S); Innscor Africa (Private) Limited v L Chimoto SC06-12; Ajasi Wala v Freda Rebecca Mine SC56-16; and Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another SC73-17.

BHUNU JA, writing for the court in Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another SC73-17 had this to say:

“It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer's discretion to terminate his employment contract. Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court a quo, or anyone else for that matter, should interfere with the exercise of that discretion. In the absence of any cogent reason for interfering with the employer's discretion, the respondent's fate was sealed.”

It was not the applicant's argument that he will seek to have this Court reconsider its decisions in the cases cited above.

In an application for leave to appeal, the judge considering the application acts as a gate-keeper. The role of the judge is to keep out appeals with no prospects of success.

It presents itself very clearly to me that an application that raises a point that has already been determined by this Court, and has been determined against the very point that the applicant seeks to argue on appeal, is one such application that should not be allowed to pass - unless the applicant shows that it intends to request the Supreme Court to reverse its earlier decision and has some prospects of success in that regard.

The applicant has not indicated an intention to request this court to reverse itself.

On the basis of the foregoing, this application cannot succeed.

Regarding costs, I see no justification for these not to follow the cause.

In the result, I make the following order:

The application is dismissed with costs.

HB147-18 : MARTIN JONGWE vs NATIONAL FOODS LTD and LABOUR COURT (BULAWAYO - HON KABASA)
Ruled By: MATHONSI J

In terms of section 98(10) of the Labour Act [Chapter 28:01]:“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: OMERJEE AJA

This is an application for leave to appeal. The background relevant to the determination of this matter is as follows:

The applicant was employed by the respondent as Finance and Administration Manager. He was the head of the Finance Department. On 21 October 2009, the applicant was suspended from duty following allegations that the finance department could not account for US$15,607=25. The applicant directly supervised this department. It is not clear from the record what charge the applicant was facing but it is clear that a hearing was conducted in terms of S.I.15 of 2006. The applicant was found guilty and dismissed from employment.

The applicant's internal appeal was dismissed on 25 November 2009, leading to a referral of the matter to a Labour Officer for conciliation. On 1 March 2010, the Labour Officer issued a Certificate of No Settlement and referred the matter for compulsory arbitration.

The arbitrator, in his findings, accepted that there were some procedural irregularities in the way the hearing was conducted and set aside the employer's decision to dismiss the applicant. He ordered that the applicant be reinstated without loss of salary and benefits as from the date of dismissal pending the outcome of a hearing de novo. The arbitrator also set out guidelines to be followed by the respondent in the event of a hearing de novo. The respondent complied with the arbitral award.

On 7 May 2010 the respondent re-instituted disciplinary proceedings against the applicant. On 11 May 2010 the applicant appealed to the Labour Court against the determination of the arbitrator. In his Notice of Appeal the applicant averred that the arbitrator misdirected himself and erred at law when he permitted the respondent to conduct a hearing de novo.

The appeal was heard on 10 March 2011 and it was dismissed on 6 May 2011.

On 13 May 2011 the applicant approached the court a quo with an application for leave to appeal to this court. The application was dismissed on 12 July 2012 - some 14 months after the application was made. There has been an inordinate delay between the date of hearing of the application for leave to appeal and the date when the determination was made. No reasons were furnished for the refusal to grant leave or for the delay. This is unacceptable.

The applicant, on 20 July 2012, approached this Court in terms of section 92F(3) of the Labour Act [Chapter 28:01] seeking leave to appeal against the decision of the Labour Court.

During the hearing of the application, counsel for the respondent submitted that fresh disciplinary proceedings had been instituted against the applicant and had been taken to finality. The applicant was dismissed from his employment following new disciplinary proceedings.

Counsel for the applicant agreed that it was correct that the applicant had been charged, and, having been found guilty, was dismissed from his employment.

It is common cause that the arbitrator was exercising review powers over the matter when he was considering the proceedings before the disciplinary hearing with a view to determine whether the dismissal was procedurally correct. The arbitrator found that there were procedural irregularities in the manner in which the disciplinary proceedings were conducted.

As a general proposition, in cases where disciplinary proceedings have been set aside, on review, on purely procedural grounds, an employer has the power to institute proceedings afresh against the employee, if there exist bona fide grounds for doing so.

In an application of this nature one ought to consider whether there are any prospects of success on appeal. In this case, there exist no prospects of success because there is no law that precludes the employer from instituting proceedings afresh especially when earlier proceedings had been impugned on the basis of procedural irregularities.

Even if the court were to grant the relief sought by counsel for the applicant, such relief would be academic in nature. The applicant stands dismissed from his employment by reason of separate disciplinary proceedings instituted by the employer against the applicant.

For these reasons, the relief sought cannot be granted. The application is hereby dismissed and there shall be no order as to costs.

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment. Having appealed only against part of the judgment, they erroneously went on to pray for the setting aside of the whole judgment.

The Notice of Appeal reads:

“TAKE NOTICE that the Appellants hereby appeal against part of the judgment of the Labour Court…,.”…,.

Whereas the relief sought reads as follows:

“RELIEF SOUGHT;

The appellants seek the following relief:

1. That the appeal is allowed with costs.

2. That the judgment of the court a quo is set aside and in its place substituted by the following:

2.1 The dismissal from employment of the 1st and 2nd appellants be and is hereby set aside.

2.2 The Respondent shall reinstate the 1st and 2nd Appellants without loss of salary and benefits with effect from their date of dismissal.

2.3 If reinstatement is no longer suitable, the Respondent shall pay damages to 1st and 2nd Appellants without loss of salary and benefits in an amount to be agreed or assessed by the Labour Court.”…,.

It is plain that the Notice of Appeal and the relief sought by the appellants are irreconcilably contradictory. It is rather irrational for the appellants to appeal against only part of the judgment and then seek to have the whole judgment set aside.

The learned Chief Justice, in his routine supervisory and administrative functions, noted the fatal irregularity and engaged counsel for the appellants with a view to enlighten him about the fatal defect in his Notice of Appeal.

His extra curial intervention was made in good faith to avoid clogging the court with fatally defective appeals. As the Chief Justice was not presiding over a court but merely performing his administrative function there was nothing he could do to prevent counsel from taking his patently defective Notice of Appeal to court.

Disputing the fatality of the defects in his Notice of Appeal, counsel for the appellants steadfastly stuck to his guns and refused to take the learned Chief Justice's wise counsel. It however dawned on counsel, later on, that his Notice of Appeal was defective.

He then filed an application to amend the defective Notice of Appeal on 6 September 2017.

In his application to amend the Notice to Appeal, counsel for the appellants acknowledged that the Notice was defective for want of compliance with Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 in two material respects, namely:

1. The mis-naming of the parties in the prayer as described at sub paragraph 2.2; and

2. The non-statement in paragraph 2 of the prayer that only part of the judgment of the court a quo should be set aside.

While accepting that his Notice of Appeal was defective, counsel for the appellants sought to persuade the court that the above defects in his Notice of Appeal were not fatal as they are capable of being amended.

Rule 7 is however couched in peremptory terms admitting no exception. It reads:

“7. Contents of Notice of Appeal

A notice instituting an appeal shall state —

(a) The tribunal or officer whose decision is appealed against; and

(b) The date on which the decision was given; and

(c) The grounds of appeal; and

(d) The exact nature of the relief sought; and

(e) The address of the appellant or his legal representative.”…,.

It is settled law that, save in exceptional circumstances, the term 'shall', denotes the law maker's intention to render the Rule mandatory.

This Court has ruled, on numerous occasions, that failure to comply with mandatory provisions of the Rules of court will render an appeal a nullity.

In Chikura and Another v Al Sham's Global BVI Limited SC17-17 ZIYAMBI JA had occasion to remark that:

“The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).”

In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited SC61-03, this Court held that a fatally defective appeal cannot be condoned or amended. It can only be struck off.

The Notice of Appeal, in this case, is, therefore, fatally defective and a nullity at law. For that reason it is incurably bad and beyond repair.

The authorities are clear, and it is now a matter of settled elementary law, that, when a proceeding is a nullity every proceeding based on it is also a nullity as observed by KORSAH JA in Ngani v Mbanje & Another; Mbanje & Another v Ngani 1987 (2) ZLR 111…, where the learned judge, relying on the dicta in McFoy v United Africa Company Ltd ALL ER 1169 remarked that:

“If an act is, in law, a nullity, it is not only bad, but incurably bad. There is no need for the order of the Court to set it aside. It is automatically null and void without more ado. Though it is sometimes more convenient to do so. And every proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

What this means, in simple terms, is that the application to amend the fatally defective appeal is also in itself fatally defective and a nullity at law.

For the foregoing reasons, this Court unanimously holds that both the Notice of Appeal and the application to amend are fatally defective warranting being struck off without any further ado.

Counsel for the respondents, in the main appeal, has asked for costs on the higher scale. Counsel for the applicants sought to resist costs at the punitive scale arguing that the Chief Justice was not sitting as a court and therefore he was at liberty to disregard his caution.

It is correct that the Chief Justice was not sitting as a court but his views mattered. The administrative function to scrutinise court records and engage lawyers before going to court is a noble objective meant to save time and money by nipping defects in the bud before they get to court.

While counsel for the applicants was not bound by the learned Chief Justice's opinion it was wise to take heed of his caution unless he was sure of what he was doing. Had he taken heed, he would not have taken a dead case to court wasting everyone's time and putting the other party to unnecessary expense.

Those who deliberately defy wise counsel and go on to negligently cause others patrimonial loss must not cry foul when they are made to make good the loss.

Costs at the punitive scale are therefore warranted.

It would, in the court's view, be unjust for counsel for the appellants clients to bear the burden of making good the loss when it is his questionable conduct that caused it.

Legal practitioners must be warned that this is the sort of conduct that may attract costs de bonis propriis. By negating sound advice and incurring unnecessary costs in the process, counsel for the appellants was doing his clients a disservice. For that reason, the court considered that it would be patently unjust and unfair to allow him to benefit from his indecorous conduct.

It is for the foregoing reasons that the court proceeded to issue the following order:

“Whereupon, after reading papers filed of record,

IT IS ORDERED THAT:-

1. The application to amend the Notice of Appeal is dismissed with costs on the higher scale.

2. The Applicant's Counsel, Mr. G Machingambi, is barred from charging fees to his clients for the application to amend the defective Notice of Appeal.

3. The cross-appeal is to be heard.”

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

This chamber application was placed before me in terms of Rule 5 of the Supreme Court Rules 1964. Although it was unopposed, it raised an issue concerning the interpretation of Practice Directive 3/13.BACKGROUNDThe appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It ...

BACKGROUND

The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not comply with Rule 4(2) and Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

Firstly, the notice of appeal reflected the wrong date on which judgment was delivered by the Labour Court. It was quite clear ex facie the judgment that it had been hand down on 29 June 2012. However, the Notice of Appeal stated that it was handed down on 29 May 2012.

Secondly, a copy of the Notice of Appeal was served on the Registrar of the Labour Court contrary to the order by GOWORA JA.

The order granted by GOWORA JA stated as follows:

“1. Leave be and is hereby granted to the applicant to note an appeal against the judgment of the Labour Court No. LC/H/196/2012 handed down on 29 June 2012.

2. The Notice of Appeal shall be noted within fourteen (14) days of the date of this order.

3. There be no order as to costs.”

It was thus incumbent upon the applicant to serve the notice of appeal with the Registrar of the Labour Court within fourteen days of the grant of the order.

The order was granted on 28 January 2014. It was only filed with the Registrar of the Labour Court on 28 February 2014 - a month later....,.

In the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA stated as follows…,.:

“…, a Notice of Appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, it must be struck off the roll…,.”...,.

In the case of Hattingh v Pienaar 1977 (2) SA 182 (0), where the court had occasion to deal with a defective compliance of the rules, the court held as follows:

“…, a fatally defective compliance with the rules, regarding the filing of appeals, cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

SC08-11 : ERIC FILON vs PUBLIC SERVICE COMMISSION and THE SECRETARY FOR WATER RESOURCES
Ruled By: CHIDYAUSIKU CJ

In Chambers: The legal point raised in this application is:Who should grant or refuse leave to appeal in terms of section 92F of the Labour Act [Chapter 28:01] in circumstances where the presiding President is unavailable? The relevant section provides:"92F Appeals against decisions of Labour Court(1) An appeal on a ...

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.Appeals under the Labour Act are governed by that Act. Section 92D of the Labour Act provides:"A person who is aggrieved by a determination made under an employment code, may, ...

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

This is an application for leave to appeal from a judgment of the Labor Court. The court a quo found no merit in the application for leave to appeal and dismissed it, on the main, that, the draft notice of appeal did not raise questions of law.

The applicant was dissatisfied with the judgment of the court a quo and filed an application for leave in terms of Rule 60 of the Supreme Court Rules, 2018.

BACKGROUND FACTS

The brief background of this application may be summarised as follows:

The applicant was employed by the first respondent as a Stock Quality Analyst. He was charged with misconduct by the first respondent on the basis that he had been found in possession of unauthorised email communication which was between Group Executives. The first respondent was of the view that the applicant's conduct amounted to an act of un-authorised impingement of emails in the organisation. The applicants conduct was aggravated by the fact that the applicant had allegedly shared this information with other persons without the written consent of the first respondent in terms of the first respondent's IT policy.

Following a charge of misconduct, a hearing before the Disciplinary Committee was set down but was postponed on six separate occasions at the request of the applicant. On the final occasion, the Disciplinary Committee proceeded to hear the matter and found the applicant guilty in absentia.

He was subsequently dismissed from employment.

Following the applicant's dismissal, he proceeded to file an appeal with the Appeals Committee in terms of the Disciplinary Code. Again, the applicant did not attend the hearing before the Appeals Committee and the Committee proceeded to dismiss the appeal and to uphold the decision by the Disciplinary Committee.

The applicant appealed to the Labour Court under LC/B/37/2019 before MURASI J on the basis, that, the hearing committee had erred by not finding that he was wrongfully charged. The applicant further averred that the committee had erred in finding that he was in possession of documents whereas the documents, subject to the charge, had been loaded onto his computer following a breach of his password.

The first respondent raised a point in limine to the effect that the appeal was improperly before the court as the applicant had not appeared before the two lower tribunals, which tribunals had issued default judgments against him, and, as such, these decisions could not be appealed against.

The court proceeded to uphold the point in limine and struck the matter off the roll.

The applicant then made an application for condonation of late filing of an application for review and extension of time within which to file an application for review.

The court a quo dismissed the application.

The court found that the applicant failed to give a reasonable explanation for the delay in making a valid application for review, and that, in any event, he lacked prospects of success on review.

The applicant subsequently sought for leave to appeal to this Court under LC/MT/48/20. The applicant argued, that, the court a quo had made material omissions in its findings and that its discretion had been based on wrong principles of law. He also attached his intended Notice of Appeal to the application.

The court a quo dismissed the application on the basis that the applicant's intended grounds of appeal did not raise questions of law as required by the Labour Court Rules.

Undeterred by this dismissal, the applicant launched this application.

APPLICANT'S SUBMISSIONS

On the merits, the applicant submitted, that, the court a quo misdirected itself by making findings of fact contrary to the evidence presented, particularly that his dismissal took place on 31 August 2018 when the actual dismissal date had been 31 July 2018. It was the applicant's case that his dismissal, on that date, disregarded a valid sick note which was against labour laws and the court a quo had failed to consider same.

The applicant further argued, that, the court a quo erred by failing to make a ruling on his application for rescission of judgment and by failing to decide the matter based on the evidence of the screenshot, emails, and a forensic report.

RESPONDENT'S SUBMISSIONS

Counsel for the first respondent opposed the preliminary points raised by the applicant and argued, that, the failure to list the reference case numbers on the Notice of Opposition does not render the notice of opposition defective as the first respondent had clearly cited the case number SCB67/20.

Counsel further argued, that, the reference to “our prayer” under paragraph 27 of the notice of opposition was erroneously made, and, in any event, did not detract from the actual prayer sought. It was counsel's argument that it was clear from the opposing affidavit that the second and third respondents were not active in the matter and that it was the first respondent which sought relief.

Counsel for the first respondent also raised a preliminary point to the effect, that, the applicant's intended Notice of Appeal was fatally defective as it did not cite the correct date when the judgment appealed against was handed down. Counsel further submitted that the relief sought by the applicant was defective.

On the merits, it was counsel for the first respondent's argument, that, the applicant clearly had a misunderstanding of what he sought to have impugned in the judgment of the court a quo. Counsel further argued, that, the court did not err in dismissing the applicant's application as it had no prospects of success on appeal....,.

With regards to the first respondent's point in limine, it was submitted, by counsel for the first respondent, that, the appellant's Notice of Appeal is fatally defective as it does not identify the correct date when the judgment appealed against was handed down and that it has an incompetent relief sought in the prayer.

It was the first respondent's submission, that, on filing an application for leave to appeal, the applicant must attach a Notice of Appeal that complies with the Rules.

The applicant opposed the point raised by the first respondent and argued that the correct date when the judgment was handed down was 13 March 2019.

The applicant did not, however, amend the Notice of Appeal which is before me.

Rule 59(3) of the Supreme Court Rules provides what should be included in a Notice of Appeal. The Rule states as follows:

“The notice of appeal shall state –

(a) The date on which the decision was given;

(b)…,.

(c)…,.

(d) The exact nature of the relief sought;

(e)…,.”

The provisions are mandatory.

The applicant accepted that the date on his draft notice of appeal was incorrect. The applicant did not amend the date, and, as such the notice of appeal, as is, remains defective as it has an incorrect date.

It is trite that the draft notice of appeal placed before the Court in an application of this nature becomes the notice of appeal which forms the basis of the appeal to be heard by the Court. It is thus imperative that the draft notice of appeal must comply with the rules of the court.

The applicant's notice of appeal is thus defective in this regard.

The applicant's draft notice of appeal is also rendered defective by the relief sought on appeal by the applicant. The applicant's amended notice of appeal has the following relief sought on appeal:

“WHEREFORE the appellant prays for an order that:

(a) The appeal is allowed with costs.

(b) The judgment of the court a quo is set aside and is substituted with the following order:

'The application is allowed with costs.'

AND IT IS ORDERED THAT:

PRAYER (1)

Appellant to file notice or Review to Labour Court within ten (10) days; application to be heard before a different judge. (sic)

PRAYER (2)

Supreme Court to make such other order that the court considers speedy, equitable, and inexpensive to meet justice of case.”

It is apparent that the applicant wanted an order that the Court, sitting as an Appeal Court, grant him condonation and extension of time within which to file his review application.

This is not what the applicant sought in casu.

In Mudyavanhu v Saruchera & Others SC75-17 the Court stated the following:

“Rule 29(1)(e) is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.”

See also Sambaza v AL Shams Global BVI Limited SC03-18.

The phrase 'exact nature of the relief sought' means that an appellant must inform the Court of the relief he/she wants.

The Supreme Court's mandate is to examine the correctness or otherwise of a decision of the lower court. In doing so, the court is guided by the relief sought by the appellant.

The need for the relief sought on appeal to be exact cannot be over emphasised.

The applicant in casu gives two prayers, on appeal, which are both incompetent:

(i) The first prayer is that this Court order that the applicant file his notice of review to the Labour Court within ten days and for the application to be heard before a different judge.

If this Court finds for the applicant, on appeal, it will mean that he has a right of audience before the Labour Court to make a fresh application for review. The applicant will have to make a completely fresh application for review in terms of the rules of the Labour Court. He will have twenty-one days within which to make his application for review as per the dictates of Rule 20(1) of the Labour Court Rules, 2017.

As such, the prayer sought under Prayer (1) is untenable before this Court.

(ii) The applicant's alternative prayer is for the Supreme Court to make an order “as appear (sic) to it necessary in the justice of the case.”

The second prayer clearly fails to meet the threshold of the mandatory rule which provides that the exact nature of the relief sought must be given.

It cannot be for this Court to draft a relief for the applicant; rather, the applicant should inform the Court of the redress he seeks.

The relief sought renders the Notice of Appeal fatally defective.

The first respondent's preliminary points thus have merit.

I also find it necessary to highlight that the defect in the applicant's application is further compounded by the fact that his grounds of appeal are not clear and concise and do not raise questions of law.

A reading of the applicant's eight grounds of appeal shows that they are difficult to comprehend and attack the factual issues surrounding the applicant's matter.

What was before the court a quo was an application for condonation and extension of time within which to file an application for review. The applicant's grounds of appeal should challenge the court a quo's findings on the application.

The applicant's grounds, as they are, clearly do not do so.

Rule 44(1) of the Supreme Court Rules provides that grounds of appeal must be clear and concise.

In Chikura N.O. & Anor v AL Sham's Global BVI Limited SC17-17 the Court remarked that:

“It is not for the Court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the Court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. That is not so in the instant matter. The grounds of appeal are multiple, attack every line of reasoning of the learned judge, and do not clearly and concisely define the issues which are to be determined by this Court.”

The Court must not be left to guess what the appellant is challenging exactly from the decision of the court a quo.

The applicant must also ensure that his grounds of appeal raise questions of law.

Section 92F(1) of the Labour Act [Chapter 28:01] provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

The applicant, in making an appeal, must not only allege, but also show, that the Labour Court misdirected itself on a point of law. Mere regurgitation of facts, as has been done by the applicant in his draft notice of appeal, will render the grounds of appeal defective.

In respect to costs, the first respondent sought costs in the event that it was successful. I find no basis to deny the first respondent its costs as prayed.

In the result, the matter is struck off the roll with costs.

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course.

The following are the reasons for the order.

The facts arising in this matter are that, in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:

“Upon successful completion of the probation period, the employment contract shall run for a further period of 24 (twenty-four) months after which the authority may, at its sole discretion, offer you permanent employment on such terms and conditions as determined by it at the time.”

The literal meaning of that clause is that the respondent's contract was subject, first, to the successful completion of the probation period and then would terminate at the end of the 36 month.

In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment.

He was arraigned before a Disciplinary Committee and was found guilty of both charges. He was, as a consequence, dismissed from employment.

He appealed to the Appeals Committee without success.

The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court a quo ordered the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer tenable, to pay damages in lieu of reinstatement.

This decision was not appealed against.

Instead, the parties decided to negotiate the quantum of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification.

He claimed, that, when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee.

The appellant opposed the quantification on the basis that the respondent was employed on a fixed-term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract.

The Labour Court ruled in favour of the respondent and ordered the appellant to pay:

(a) US$19,740=16 as back-pay and benefits.

(b) Twelve (12) months' salary that the respondent would have earned in August 2011 minus US$150 earned by the respondent per month for a period of twelve months.

The appellant was aggrieved by the decision, and, with the leave of this court has appealed the order of the court a quo.

It is criticized for the following reasons:

(i) Failing to put due weight to the fact that the respondent was employed as a Revenue Trainee on a fixed term contract of 36 (thirty six) months.

(ii) Failing to give proper weight to the fact, that, when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.

(iii) Failing to give proper weight to Clause 1.3 of the Zimbabwe Revenue Authority offer of employment which provides that permanent employment could only be offered at the sole discretion of the appellant.

(iv) Failing to give proper weight to the submission, that, even if the respondent had not been dismissed, he would not have been offered permanent employment as he had failed two (2) core courses in November 2004 and supplementary exams in 2005.

(v) Failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.

(vi) In finding that the respondent's entitlement to damages accrued up to the date of the court's judgment.

(vii) In failing to deduct the US$150 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.

(viii) In failing to appreciate that the respondent could have easily obtained alternative employment within a period of six (6) months.

(ix) In rejecting the evidence of the appellant's expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.

The respondent raised three preliminary objections to the appeal. The objections were, respectively, that;

(i) The Notice of Appeal did not state the correct date of judgment;

(ii) The grounds of appeal were not clear and concise; and, lastly

(iii) That the grounds of appeal did not raise questions of law.

The respondent abandoned the first objection after conceding that the Notice of Appeal, in point of fact, reflected the correct date of judgment.

The other two points were dismissed by the court....,.

In mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court...,.

SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court (the court a quo). The order appealed against is dated 14 November 2018.

That order upheld the respondent's objection in limine to the effect that the appellant's claim had prescribed.

Consequently, it dismissed the appellant's application for condonation of late noting of appeal and extension of time within which to note the appeal.

Aggrieved by the judgment a quo, the appellant approached this Court, on appeal, for relief.

PRELIMINARY OBJECTION

On 30 September 2019, the learned counsel for the respondent gave notice of intention to raise a preliminary point premised on the appellant's alleged failure to comply with the peremptory provisions of Rule 37(1)(a) of the Supreme Court Rules 2018.

The Rule provides as follows:

“37(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioners which shall state –

(a) The date on which, and the court by which, the judgment appealed against was given;”

The basis of the objection is that the appellant did not state the correct date when judgment was handed down as is required by Rule 37(1)(a) of the Supreme Court Rules 2018.

The submission is that the appellant, in his notice of appeal, stated 14 November 2018 as the date judgment was handed down when the actual date of judgment was 3 May 2019.

A perusal of the record of proceedings suggests that there were two hearings presided over by the same judge, involving the same parties, in the same case number LC/H/603.

The first sitting was on 7 November 2018 where the learned judge a quo issued the following order under order number LC/H/ORD/1229/2018:

“WHEREUPON after reading documents filed of record and hearing counsel for both parties:

IT IS ORDERED THAT:

1. The preliminary issues are upheld.

2. The claim is prescribed.

3. The application for condonation of late noting of appeal and extension of time be and is hereby dismissed with costs.”

The second case, according to the record of proceedings, commenced on 7 November 2019, and the learned judge a quo issued an order substantially on the same lines but under a different judgment number, LC/H/115/2019. The order reads:

“It is accordingly ordered that:

1. The preliminary issues are accordingly upheld; the claim is prescribed.

2. The application for condonation of late noting of appeal and extension of time be and is hereby dismissed with costs.”

The appellant, in his sole discretion, has elected to appeal against the first order under order number LC/H/ORD/1229/2018. He correctly stated the date on which the judgment was given as appears on the face of the corresponding order.

He has not appealed against the subsequent order of 2019 which appears to be a restatement of the initial order of 2018 above.

Although the dates of hearing appear suspiciously to have been confused, that issue was not ventilated before us.

We therefore came to the unanimous conclusion that the appellant correctly cited the date appearing on the face of the order appealed against.

It being an entrenched position in our law that one appeals against the order of court and not the reasons we unanimously upheld the appellant's contention that he had complied with the law by stating the date appearing on the face of the first court order.

We accordingly dismissed the respondent's objection in limine without any further ado.

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

This is an appeal against a judgment of the Labour Court wherein the decision to dismiss the appellant from employment that had been made by the appellant's Managing Director was set aside whilst an earlier decision by the disciplinary committee, that the respondent be issued with a second written warning, was confirmed.

The facts of the matter may be summarized as follows;

The respondent was employed as a Creditor's Clerk by the appellant. He was charged with a number of acts of misconduct. He denied all the charges. A hearing was conducted by the disciplinary committee. On 30 January 2014, the Human Resources Manager communicated the disciplinary committee's decision to the respondent in the following terms:

“RE: DETERMINATION ON HEARING

Reference is hereby made to the internal disciplinary hearing finalized on 29 January 2014 in respect (of) cases in terms of SI67 of 2012 Annexure 2 Action Code:

(i) Offence number 2; 2.2 – Gross incompetence or inefficiency in performance of work.

(ii) Offence number 2; 2.3.1 - Gross negligence.

(iii) Offence number 3; 3.7 – Insubordination.

(iv) Offence number 3; 3.14 - Wilful disobedience of a lawful order given by the employer.

After deliberations, the hearing committee passed the following verdict:

(a) Presentation of case was not properly done.

(b) You need to change your attitude towards your job and to put more effort in your job.

(c) You shall report for duty to your normal duties with effective (sic) 1 February 2014.

In light of the above, the hearing committee then agreed that you be given a second written warning which will last for the period of 3 months.

If you are aggrieved with this decision, you have the right to appeal in terms of S.I.67 of 2012 appeal procedure.”

The complainant in the disciplinary hearing appealed to the Managing Director against the Disciplinary Committee's decision. There was no appeal by the respondent.

On 10 February 2014, the Managing Director wrote to the complainant in the following terms:

“Attention: COMPLAINANT
PIONEER TRANSPORT

Re: APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING

I refer to your letter addressed to me dated 3 February appealing against the decision of the Disciplinary Committee in the hearing of Douglas Mafikeni passed on 29 January 2014.

I have read through the minutes of the hearing and looked at the deliberations made, and have come to the conclusion, that, the disciplinary committee made an error in coming up with the determination.

It is very clear that Douglas Mafikeni (sic) failed to meet set deadlines and submitted creditor's listing (sic) that was grossly incorrect showing a very high level of incompetence. Despite him having been given a written warning three months earlier he still failed to improve performance in executing his duties.

Matters of discipline are determined on a balance of probability, and, as such, all these factors of failure to meet deadlines, production of incorrect creditors listing even after having been given an extension. (sic)

THEREFORE, in light of the above, I hereby overturn the determination by the Disciplinary Committee, and the respondent is found guilty of the charges and the penalty is dismissal. The respondent (sic) should be dismissed effective 12 February.”…,.

On 12 February 2014, a letter was written by the Human Resources Manager to the respondent. It reads:

“This letter serves to inform you, that, following a disciplinary committee hearing that was concluded on 29 January 2014, where the disciplinary committee made a decision to give you a second warning, an appeal was made by the complainant against that decision in terms of Part E section E1.1 of the SI67 of 2012. (sic)

A decision was made by the office, made from the office (sic) of the Managing Director, as defined in Part A4 (definitions) of the Sixth Schedule, overturning the decision of the disciplinary committee.

The decision to overturn the disciplinary committee ruling was based on the fact that you failed to meet set deadlines, you also presented a creditors listing that was grossly incorrect showing a very high level of incompetence.

It is against this background that you were found guilty in terms of SI67 of 2012 Annexure 2 sections 2.2, for gross incompetence, section 2.3.1, section 3.7 and section 3.14.

You are therefore being dismissed from Pioneer Transport with effect from 12 February 2014 and you are further advised that you have the right to appeal to the Labour Court against this decision in terms of Part E section E.3 of the Sixth Schedule within 21 working days.”

Aggrieved by the decision to dismiss him, the respondent appealed to the court a quo, arguing, inter alia, that the Managing Director had erred in considering an earlier written warning which had, in any event, expired. The appellant's contention, on the other hand, was that the earlier written warning was relevant and was therefore properly taken into consideration.

The court a quo approached the matter as one in which it needed to examine whether the appellant, as the employer, had exercised its discretion judiciously in light of section 12B(4) of the Labour Act, on the basis that it could only interfere with such discretion if it was not so exercised.

The court a quo found, that, the earlier written warning had expired, and that, therefore, the Managing Director had misdirected himself in giving any consideration to it. On that basis, the court then interfered with the appellant's decision and set aside the dismissal imposed by the appellant's Managing Director but confirmed the disciplinary committee's decision that a written warning be issued.

It may be noted at this juncture, that, the respondent averred that the first written warning is non-existent as the appellant failed to produce a copy of it in the disciplinary hearing and to the court a quo.

The appellant has not shed any light on this issue.

The appellant has now appealed to this court against the court a quo's decision on the following grounds:

(i) The court a quo grossly erred at law in interfering with the penalty of dismissal for a misconduct that goes to the root of the contract;

(ii) The court a quo erred at law in making a finding, that, an expired warning cannot be treated as a record of employment service when imposing penalty contrary to the provisions of section 12B(4) of the Labour Act [28:01] which makes it mandatory to consider such;

(iii) The court a quo misdirected itself, factually, which misdirection amounts to a point of law, in that it made a finding that the decision of the Appeals Officer to impose a penalty of dismissal was solely hinged on the issue of a previous warning which was not the case as the Appeals Officer also considered other factors like the gravity of the offence, inter alia.

The appellant's prayer (as amended) is for an order that the appeal is allowed and that the decision of the court a quo be set aside and substituted with the following:

“That the appeal be and is hereby dismissed with costs.”

The last paragraph of the letter dated 30 January 2014, to the respondent, informing him of the decision of the disciplinary committee, pointed him to S.I.67 of 2012 with regard to his right to appeal should he be aggrieved.

He did not appeal.

As already pointed out earlier, an appeal was noted by the appellant's representative who was the complainant in the Disciplinary Committee hearing.

SI67 of 2012 is the “Collective Bargaining Agreement: Transport Operating Industry.”

It incorporates, in the Sixth Schedule thereof, the Code of Conduct applicable to the entire transport operating industry. Part E, in terms of which the complainant appealed to the Managing Director, provides as follows:

“E. APPEALS AND REVIEW OF MATTERS

A party which may be aggrieved by the decision of the Disciplinary Committee, as per D.1 above, may, within 5 days –

E.1 Appeal to the Chief Executive.

E.1.1 Appeals to the Chief Executive where the issue involves dismissal or any form of termination of employment shall be in writing, and shall state the grounds of appeal.”

By stating that “a party which may be aggrieved…, may appeal” the section gives the right to appeal against the decision of the disciplinary committee to any party - including an employer who may be aggrieved by the committee's decision.

Thus, whilst it is generally undesirable for an employer to appeal against decisions that are usually viewed as decisions of its own internal disciplinary bodies; in casu, the applicable law, that is to say, the Statutory Instrument, allows, in clear terms, for an appeal against the decision of the disciplinary committee by a “party which may be aggrieved.”

Accordingly, the employer, being an aggrieved party, acted within its statutory rights in appealing against the decision of the disciplinary committee.

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

Section 89(2) of the Labour Act reads:“(2)(a) In the exercise of its functions, the Labour Court may: in the case of an appeal –(i) Conduct a hearing into the matter or decide it on the record; or(ii) Confirm, vary, reverse or set aside the decision, order or action that is ...

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.BACKGROUND FACTSThe respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check ...

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.

BACKGROUND FACTS

The respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check was conducted and a shortfall of $45 was discovered in the respondent's till. The respondent was asked to write a report of the incident and the shortfall.

In the report, he stated, that, the shortfall was caused by $50 which he had given to a fellow till operator, Nancy Chawanza, who had forgotten to return the money. The respondent also stated, in the report, that, he had served a customer and given him $180 cash back instead of $130. He averred that the customer later returned the $50 after realising the error and he replaced the money in his till without notifying his supervisors.

The respondent was subsequently charged with the offence of deliberately giving untrue or incorrect information and for unsatisfactory work performance.

A disciplinary hearing was conducted, and he was found guilty, and was subsequently dismissed.

He appealed against the decision to the Local Joint Committee which upheld the determination and the dismissal. Aggrieved, the respondent appealed to the National Employment Council for the Commercial Sections (NEC) which upheld the determination and dismissed the appeal.

As a result, the respondent noted an appeal with the Labour Court on 1 June 2016.

The appellant failed to file a notice of response at the Labour Court within the stipulated time, only to attempt to do so some four (4) months later, on 18 October 2016, together with heads of argument. This was so despite the appellant having been favoured with a letter from the Registrar of the Labour Court calling on it to file a response.

At the hearing of the matter, the court a quo proceeded in terms of Rule 22(b)(1) of the Labour Court Rules, 2006 (SI59 of 2006) (heinafter referred to as “the Rules”) and entered default judgement against the appellant.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

(a) The court a quo erred, on a question of law, by proceeding to enter default judgment against the appellant in circumstances in which the appellant had filed a notice of response, albeit belatedly, as well as heads of argument which would have enabled the court to determine the matter on the merits.

(b) The court a quo erred, on a question of law, by failing to find, that, the explanation which was given by the appellant for the delay in filing the Notice of Response constituted good cause for the delay.

(c) The court a quo made an error, on a question of law, by not taking into account the nature of the case and failing to apply its discretion judiciously, more specially by not considering the evidence on record which demonstrated that the respondent had admitted to the offences with which he was charged, which offences attracted a penalty of dismissal.

(d) The court a quo, in any event, erred, on a question of law, by failing to give reasons for the judgment which is appealed against. A failure to give reasons constitutes a judicial irregularity.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant argued, that, the court a quo erred in not providing reasons for its decision, which was that of the default judgment.

Per contra, counsel for the respondent submitted, that, since what was being appealed against was a default judgement, it could only be set aside through an application for rescission of that judgment.

He further submitted, that, the appellant had not requested the reasons from the Labour Court.

APPLICATION OF THE LAW TO THE FACTS

After hearing submissions, my view is that the sole issue to be determined is whether the default judgment entered by the court a quo is appealable.

The respondent filed its notice of appeal to the Labour Court on 1 June 2016. In terms of the Labour Court Rules, 2006, the appellant had 14 days within which it could file its notice of response.

Rule 19(2) of the Labour Court Rules, 2006 provides as follows:

“(2) The registrar, shall, within thirty days of receiving a notice of appeal in terms of subrule (1)(d), give notice in Part I of Form LC2 to the respondent —

(a) To complete, in three copies, a notice of response to the appeal in Part II of Form LC2; and

(b) To do the following within fourteen days of the date when the registrar gives notice to the respondent under this subrule —

(i) Serve one copy of the notice of response on the appellant: and

(ii) File with the registrar one of the other copies of the notice of response, together with proof (as required by Rule 11) that the notice of response was served on the appellant….,.”

The appellant failed to adhere to the Rules of the court, and it later filed its notice of response and heads of argument way out of time - some four (4) months after the Registrar had given the appellant notice.

There is no evidence on record that an application for condonation for late filing of the notice of response and heads of arguments was made.

It therefore follows, that, the court a quo granted a default judgment in terms of Rule 22(b)(1) of the Labour Court Rules which provides as follows:

“22 Where a party fails to file a Notice of Response

Where notice has been given to a party to file a notice of response within the period specified in Rule 14, 15 or 16 and that party fails to comply, the matter shall nevertheless be set down in terms of Rule 21, and if, on the day of hearing, the defaulting party —

(a)…,.

(b) Does not appear or show good cause why he or she did not file a response, the Court may, according to the nature of the case, or as the justice of the case requires —

(i) Enter a default judgement against the defaulting party;”

A reading of the above provisions will show, that, a respondent who has been served with a notice to respond by the Registrar must file its notice of response within 14 days and serve both the appellant and the Registrar.

Failure to act in terms of the above Rules of court results in the offending party being barred and default judgment entered against him at the discretion of the court.

In casu, the appellant, in the court a quo, was barred from making submissions as it had filed its notice of response out of time - which fact the appellant admitted in its heads of argument. It therefore followed that judgment was granted in default.

The court, in Katritsis v De Macedo 1966 (1) SA 613 (A), held that:

“It is clear from the authorities that the default in regard to a defendant is not confined to his failure to file the necessary documents required by the Rules in opposition to the claim against him, or to appear when the case is called, but, comprises also failure to attend Court during the hearing of the matter.”

As the judgment that was given by the court a quo was a default judgment in nature, the question that ought to be asked is: whether one can appeal on the merits before the bar has been lifted.

According to our law, a party cannot appeal against a default judgment.

The correct procedure would be for that party to make an application for the judgment to be rescinded first: see Chintengo v Tredcor & Anor SC67-19.

This approach was underlined by this Court in Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S) where it held as follows:

“The present appeal is therefore against the order of 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996. That order of 23 May 1997, as I understand it, was effectively a default judgment. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgment. Once the postponement was refused, the appellants were effectively in default. Procedurally, therefore, the appellants should have sought a rescission of the default judgment of 23 May, rather than appeal against it. On this ground alone, the appeal must fail.”…,.

In Zvinavashe v Ndlovu SC 2006 (2) ZLR 372 (S) it was held:

“The defining feature of a judgement granted after a party fails to appear is the default of the absent party…; that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.”

This Court, again, had the occasion to deal with a similar matter in Guoxing Gong v Mayor Logistics (Pvt) Ltd and Anor SC02-17 wherein BHUNU JA held as follows:

“It is trite, that, save in special circumstances which do not concern us here, no appeal lies to this Court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore follows, that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this Court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment, that is a complaint to be laid at the court a quo's door and not this Court.”

The appellant has invited this Court to deal with the merits of this matter as it is seized with all the material facts it needs to make a decision. He relies on the case of Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14 wherein ZIYAMBI JA held as follows:

“This court is always reluctant to decide matters at first and last instance although it is quite possible that it may do so in exceptional circumstances.”

Unfortunately, this case does not fall into the category of 'exceptional circumstances' as referenced above.

There is nothing exceptional in the circumstances, but, rather, what is there is a disregard of proper practice and procedure that a default judgment can only be set aside by its rescission. It follows, that, as this is not one of the exceptional circumstances, this Court cannot be moved to hearing this matter in the first and last instance: see Bakari v Total Zimbabwe (Private) Limited SC21-19.

DISPOSITION

The appellant, having had default judgment entered against it, and having not taken steps to have it rescinded, that default judgment remains extant. No appeal can lie against it.

The present purported appeal is improperly before this Court, and, it is, accordingly, struck off the roll with costs following the outcome.

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

The appellant employed the respondent as a Security Officer.

It has appealed against the entire judgment of the Labour Court (“the court a quo”) handed down on 14 September 2012. The judgment allowed an appeal by the respondent against the decision of the appellant's disciplinary committee (“the committee”) which found him guilty of misconduct and dismissed him from employment.

THE FACTS

On a date that is not material, the respondent allegedly gave copies of his payslips to a former employee of the appellant who was involved in a labour dispute with the appellant. The payslips were duly attached as evidence by the former employee to his court papers which were served on the appellant.

Thereafter, the appellant charged the respondent with two counts of misconduct for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of Conduct. Specifically, the respondent was accused of committing any act, misconduct or omission inconsistent with the express or implied conditions of employment and acting in conflict with the Group Business or Editorial Policies.

I note, in passing, that, the single act gave rise to two separate charges neither of which was preferred in the alternative, a glaring irregularity that was not adverted to by either of the parties at the hearing of the matter, as it offends the rule against the splitting of charges.

The issue was not raised with counsel and it cannot be a point on which this appeal may turn.

In his written response to the charges, the respondent denied that he had furnished the former employee with his payslips for personal use.

He appeared before a disciplinary committee on 19 November 2010.

At the hearing of the matter, the respondent argued, that, the disclosure of a payslip was not an act of misconduct specifically provided for in the code of conduct. He further argued, that, the prohibition against disclosure of a payslip was only introduced after he had been charged.

At the end of the hearing, the disciplinary committee found that the copies of the pay slips attached to the former employee's application appeared to belong to the respondent; that two witnesses testified that the respondent had admitted to them that he had given his payslips to the former employee; and that the respondent, in furnishing his payslips to the former employee, was being disloyal to the employer.

On the basis of these findings, the committee duly found the respondent guilty and dismissed him from employment.

I also note at this stage, that, there was no specific finding by the disciplinary committee that the respondent knew, at the time he allegedly gave his payslips to the former employee of the appellant, that his conduct was prohibited. It was the finding of the disciplinary committee, that, by giving his pay-slips to the former employee, the respondent acted disloyally.

Aggrieved by that decision, the respondent appealed to the Group Chief Executive Officer. He raised a number of grounds of appeal:

(i) The first was that the “offence involving payslips” was not provided for in his contract of employment or the code of conduct and that the endorsement on all payslips that they are “private and confidential” only appeared after his conviction and not before.

(ii) Secondly, the respondent argued, that, there was no evidence of any wrongdoing on his part and that the charges preferred against him were contrary to public policy as the appellant wanted to further its illegal practice of underpaying workers, and, as such, the respondent was not obliged to protect such an interest.

The respondent also alleged, that, the verdict of guilty went against the weight of evidence in that the former employee testified that he had not received the payslips from the respondent and no evidence was led to controvert such testimony.

He also attacked the procedure adopted in sentencing him alleging that he was not called upon to mitigate before the penalty was imposed on him.

Finding no merit, the appellant's Group Chief Executive Officer dismissed the appeal.

He found, that, the offence was provided for in the appellant's code of conduct and that the disclosure of payslips, or copies of pay slips, to any third party, is inconsistent with the implied conditions of the employment contracts of all the appellant's employees and in direct conflict with the interests of the Group.

He found, that, the burden of proof was on the respondent to prove that he did not give his payslips to the former employee. It was his finding that the respondent had failed to discredit the evidence that his pay-slips were found attached to the former employee's court papers.

The Group Chief Executive Officer relied on the minutes of the disciplinary committee hearing in holding that the respondent had made an admission to the two witnesses called by the appellant.

PROCEEDINGS A QUO

Still dissatisfied, the respondent noted an appeal to the court a quo on a multiplicity of grounds, nine in total. Only three of those grounds of appeal raised issues of law.

In essence, they raised the issue whether the respondent's conduct, if proved, amounted to an act inconsistent with the express or implied conditions of his contract of employment.

This is so because the respondent's conduct complained of occurred immediately before the condition that payslips were private and confidential was introduced. This, in addition to the other issues, was a live issue that had to be determined.

Using somewhat different language, the court a quo also identified the issue of whether the conduct of giving a payslip to a third party, prior to their being endorsed “private and confidential” constituted a misconduct.

The court a quo regarded it as the sole issue for determination.

In a rather terse judgment, the court a quo upheld the appeal on essentially three premises, namely:

1. That, the respondent, and all other employees of the appellant, were not aware that furnishing their payslips to another was conduct inconsistent with the terms of their employment.

2. That, there was no evidence on record to prove that the respondent had given his payslips to the former employee.

3. That, the failure to allow the respondent the opportunity to mitigate before the pronouncement of a penalty was incurably bad and vitiated the entire proceedings.

PROCEEDINGS BEFORE THIS COURT

The roles were immediately reversed. Dissatisfied with the decision of the court a quo, it became the appellant's turn to appeal to this court.

It attacked the decision a quo on several bases:

(i) First, that the court a quo erred in finding that the respondent was not properly charged.

(ii) Second, that it erred in finding that the respondent was not aware that the confidential nature of the payslips did not have to be spelt out.

(iii) Third, that it erred in finding that there was no adequate evidence before the disciplinary committee that the respondent had given his payslips to the former employee.

(iv) Lastly, that the court a quo erred in finding that the failure to mitigate vitiated the proceedings as dismissal was the only appropriate penalty in terms of the Code of Conduct.

At the commencement of the hearing of the appeal, counsel for the appellant made an oral application to amend the prayer in the Notice of Appeal.

Counsel desired to insert words to provide for an order that the appeal be allowed. He did so upon a realization that this was omitted in the prayer contained in the Notice of Appeal.

Counsel for the appellant submitted, that, no prejudice will be suffered by the respondent if the amendment is granted especially as the respondent's counsel had not even picked up the defect in the prayer. In fact, the respondent had prepared to meet the appeal without regard to the defect.

While acknowledging that he had not even noticed the defect, counsel for the respondent opposed the application for the amendment.

He submitted, that, the Notice of Appeal must clearly set out the relief sought. If it fails to do so, it is null and void and cannot be amended for the reason that one cannot amend a nullity.

For his part, counsel for the appellant was quick to concede that the prayer is defective as it does not meet the requirements of Rule 37(1)(e) of the Supreme Court Rules 2018. He, however, refuted that the defect is one which renders the appeal a nullity.

In his view, the court is empowered, by Rule 41, to allow an amendment to the grounds of appeal or to any pleadings filed before it, presumably including a prayer.

ANALYSIS

It has been stated, repeatedly, by the courts, that, a failure to comply with the mandatory provisions of the Rules when lodging an appeal renders the appeal a nullity: see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Generally, where a Notice of Appeal does not comply with the Rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended: see Chikura N.O. & Anor v Al Shams Global BVI Ltd SC40-17.

The belated application for an amendment is meant to bring the appeal within the remit of Rule 37(1) which requires, that, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state, inter alia “the exact relief sought.”

The relief sought by the appellant in this case is couched in the following words:

“WHEREFORE appellant prays that the judgment of the court a quo be altered to read as follows –

'The appeal be and is hereby dismissed.'”

If the proposed amendment is granted, the prayer will read:

“WHEREFORE the appellant prays that the appeal be allowed with the judgment of the court a quo altered to read as follows -

'The appeal be and is hereby dismissed.'”

The concession made by counsel for the appellant, that the prayer is defective, is properly made.

The question however is whether the application should be granted. Put in another way: can the defective prayer be amended?

This Court was confronted with a similar situation in the case of Ndlovu & Anor v Ndlovu & Anor SC133-02. In that case, the prayer in the Notice of Appeal was couched in the following terms:

“…, that the judgment of the court a quo be dismissed with costs.”

Writing for the court, MALABA JA…, followed the reasoning in Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

He observed, that, the Notice of Appeal was clearly defective as there was no mention whether the whole or only part of the judgment was being appealed against and the exact nature of the relief sought.

At p2 of the cyclostyled judgment, he stated:

“In this case, there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

The court concluded, that, the notice of appeal, which purported to institute the appeal “was incurably defective.” As there was no appeal before the court, the matter was struck off the roll with costs.

The case of Ndlovu & Anor v Ndlovu & Anor SC133-02 is on all fours with the present matter.

It has not been suggested that a departure from the case is called for. It settles this matter because the prayer is incurably defective. It cannot be amended.

DISPOSITION

A Notice of Appeal which does not meet the requirements of the Rules of court is fatally defective and invalid. A fatally defective compliance with the Rules on the filing of an appeal cannot be condoned or amended.

The appellant's Notice of Appeal suffers the fate of all fatally defective appeals.

Having come to the conclusion, that, there is no valid appeal before the court, there is no basis for relating to the merits.

In the result, it be and is hereby ordered as follows:

1. The matter is struck off the roll.

2. The appellant shall bear the costs.

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Section 92D of the Labour Act Chapter 28:01] provides that:“92D Appeals to the Labour Court not provided for elsewhere in this ActA person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour ...

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HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

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SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
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Ruled By: ZIYAMBI JA

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Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

SC16-08 : MUROWA DIAMONDS vs UNION MAKUMBE
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

SC12-12 : ANDREW MACHAYA vs FARM AND CITY CENTRE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

SC26-15 : KIEV CHAMBOKO vs DOROWA MINERALS LIMITED
Ruled By: MALABA DCJ

SC38-15 : DELTA BEVERAGES (PRIVATE) LIMITED vs KUDAKWASHE MURANDU
Ruled By: GWAUNZA JA, HLATSHWAYO JA and CHIWESHE AJA

SC27-13 : SHECKEM BARRISTER NGAZIMBI vs MUROWA DIAMONDS (PVT) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

SC33-13 : TENDAYI TAMANIKWA and FRANK TINARWO and EMMERSON PAMIRE and TENDAI MOMBESHORA vs ZIMBABWE MANPOWER DEVELPOMENT FUND
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC22-16 : MICHEAL HENRY BROWNE vs TANGANDA TEA COMPANY
Ruled By: ZIYAMBI JA, GWAUNZA JA, PATEL JA

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

SC17-16 : ELSON GUMBO vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA

SC21-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs MARKO PHUTI
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and PATEL JA

SC53-16 : PG INDUSTRIES (ZIMBABWE) LIMITED vs MARK BVEKERWA and 34 OTHERS
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC64-17 : THOKOZILE ZINONDO vs CAFCA LIMITED
Ruled By: GWAUNZA JA

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

HH40-15 : DAVID JOHN CARROLL vs STEELBASE ZIMBABWE (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HB110-16 : FELIX SANGU vs COMMISSIONER GENERAL OF POLICE and THE BOARD OF SUITABILITY and CHIEF SUPERINTENDENT MBENGWA
Ruled By: MATHONSI J

SC29-18 : RESERVE BANK OF ZIMBABWE vs T. LLOYD MUFUDZI and RICHARD USEYA and NYASHA CHIKAZAZA and WARAIDZO TANDI
Ruled By: GOWORA JA, BHUNU JA and ZIYAMBI AJA

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

CC14-19 : GARIKAI KAMANGA vs PRINCE EDWARD SCHOOL – SDA
Ruled By: MALABA CJ and GARWE JCC and MAKARAU JCC

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE
Ruled By: MALABA CJ, GUVAVA JA and BERE JA

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

HB147-18 : MARTIN JONGWE vs NATIONAL FOODS LTD and LABOUR COURT (BULAWAYO - HON KABASA)
Ruled By: MATHONSI J

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: OMERJEE AJA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

SC08-11 : ERIC FILON vs PUBLIC SERVICE COMMISSION and THE SECRETARY FOR WATER RESOURCES
Ruled By: CHIDYAUSIKU CJ

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J