ZIYAMBI
JA:
[1] This is an appeal against a judgment
of the Labour Court which struck off the roll an appeal, by the appellant,
against an arbitral award on the grounds that the appeal was not based on
points of law contrary to the provisions of s 98 (10) of the Labour Act [Chapter 28:01].
[2] The appellant alleges, in the three
grounds of appeal raised, that the court a
quo misdirected itself in failing to find that the grounds of appeal before
it were based on points of law.
[3]
As conceded by the appellant, all the grounds of appeal raised in the court a quo were directed against factual findings
made by the arbitrator. However, nowhere
in the grounds of appeal was it alleged that the said findings were irrational
or grossly unreasonable.
[5] At the hearing before the Labour Court
a point in limine was raised by the
respondent alleging that the appeal was invalid in that no point of law was
raised in the notice of appeal. The
court reasoned as follows:
“Section 98(10) of
the Labour Act makes it clear that appeals against arbitral awards only lie to
this court on points of law. The definition of what a point of law is, is
contained in a number of authorities including the case of SABLE CHEMICAL INDUSTRIES VS DAVID PETER EASTERBROOK SC 18/2010. A gross misdirection on the
facts if properly pleaded and shown to exist can entitle one to appellate
relief. A reading of appellant's grounds of appeal shows that the plea is that
the arbitrator misdirected himself on the facts as to constitute a point of
law. There is no averment of gross misdirection on the part of the arbitrator
in the grounds of appeal. The true rule of law to be determined by the court
has not been identified.
Appellants, when
one considers the grounds of appeal, are requesting the Court to “re-consider”
the decision made by the arbitrator on the facts presented. Appellants have not
clearly averred what points of law lie for determination by this court.
Appellant's submissions in the grounds of appeal are a general 'disgruntlement'
with the decisions of the arbitrator. As already stated in numerous decisions
of the Supreme Court and this court, an appeal made in terms of section 98 (10)
of the Act shall only be entertained if it is on a question of law or where there
is a gross misdirection on the facts which is so unreasonable that no sensible
person who applied his mind to the fats would have arrived at such a decision.”
The court upheld the point in limine and struck the appeal off the
roll.
[6]
Before us Mr Mutema pressed his
contention that the court a quo had erred
in its finding that the grounds of appeal before it did not raise any point of
law.
Mr
Mutema was at pains to explain and
interpret each ground by adding to each what ought to have been, but was not,
stated therein. However, despite his efforts, we are satisfied that the grounds
of appeal as pleaded in the notice of appeal before the court a quo raised merely factual issues and
not points of law for determination by that court.
The
Labour court was acting in its appellate capacity. It is settled that an appellate court will not
interfere with factual findings made by a trial court unless those findings
were grossly unreasonable in the sense that no reasonable tribunal applying its
mind to the same facts would have arrived at the same conclusion; or that the
court had taken leave of its senses; or, put otherwise, the decision is so
outrageous in its defiance of logic that no sensible person who had applied his
mind to the question to be decided could have arrived at it.
[7] We are therefore of the view that the
judgment of the court a quo was
correct. On that finding alone the
appeal stands to be dismissed.
[8] In addition, however, the prayer in
the notice of appeal before us is defective. The appellant prayed that the
appeal be allowed with costs against the respondent and for the judgment of the
court a quo to be substituted with:
“The matter is
remitted back to the court a quo for
determination on the merits and the merits should be heard by a different
judge.”
This
is a prayer that this Court cannot grant in that it requires the lower court to
make an incompetent order, namely, an order remitting, to itself, a matter for
determination.
[9]
It appears to us that the significance of the extensive questioning by the
Court as to the meaning of that prayer eluded counsel for the appellant who
remained adamant that the notice of appeal should stand as it is.
[10]
In view of the above, we are of the unanimous view that the appeal lacks merit
and ought to be dismissed.
[11] Accordingly it is ordered as follows:
“The
appeal is dismissed with costs.”
BHUNU JA: I agree
UCHENA JA: I agree
Stansilous
& Holderness, appellant's legal practitioners
Scanlen & Holderness, respondent's legal
practitioners
