Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Labour Proceedings

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

The appellant is employed by the Traffic Safety Council of Zimbabwe as a Regional Manager. He was based at their Gweru office from where he was transferred to the Masvingo office.

The dispute which led to this case arose from his lateral transfer from Gweru to Masvingo.

On 14 November 2003, the respondent's Deputy Director, Finance and Administration, wrote a memorandum to the appellant advising him that he is transferred to Masvingo on a lateral transfer with effect from 1 January 2004 as result of a meeting which had been held by the Directorate of the respondent on 10 November 2003.

Reasons for the transfer were given, in the memorandum, as follows:

1. Training of managers through job rotation and enrichment.

2. That the Masvingo office was performing better than the Gweru office, though the Masvingo office was apparently smaller.

3. That the transfer had been necessitated by a thorough consideration of the likely impact on production and consequent benefits thereto.

The appellant wrote back to the Director of Finance making his submissions against the transfer.

The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold - but did not say for how long.

It is common cause, that, after the appellant had made his submissions, a meeting of the Directorate was held on Wednesday 19 November 2003 to deliberate on the representations made by the appellant.

On 20 November 2003, the Deputy Director wrote to the appellant advising, among other things, as follows:

“The directorate held a meeting at 11:00hrs to deliberate on the issues on Wednesday 19 November 2003. We sympathise with the personal circumstances in which you are. Also, we note, that, you are doing some publications concerning Traffic Safety work which could be made easier in Gweru. Nevertheless, the directorate realizes that each of us, forty seven (47) employees in all, have different personal circumstances, some of them could be much more taxing than yours. The directorate considers each case on its own merits but guided by the fact that the individual needs and goals are subordinate to those of Traffic Safety Council.”

The letter ended with the following statement:

“Having made a thorough consideration of your submissions, the directorate resolves that the earlier decision to transfer you to Masvingo, with effect from 1 January 2004, still stands.”

On 27 November 2003, the appellant wrote a long letter to the respondent appealing against the decision to transfer him to Masvingo and asking that it be reversed.

He did not succeed.

He took the matter to the Labour Relations Office alleging victimization and unfair transfer.

The Labour Officer referred the matter to Arbitration.

The arbitrator held, that, the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed.

The Traffic Safety Council of Zimbabwe appealed against that decision at the Labour Court. The Labour Court upheld the appeal and confirmed the decision to transfer the appellant.

The appellant now appeals against the decision of the Labour Court.

The appellant's grounds of appeal are as follows:

1. The Labour Court made a total error of law in its interpretation of clause 8.5 of the Traffic Safety Council of Zimbabwe's conditions of service as regards the transfer of employees....,.

There is nothing in the Labour Court's judgment which points at a wrong interpretation of clause 8:5 to 8:5.3. of the appellant's conditions of service.

That clause deals with transfer costs, and it is not the appellant's case that he was denied such costs.

That ground of appeal is baseless.

SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).

The background facts are as follows:

Murawo was employed by the GMB as a Safety, Health and Environment Officer. Between 4 March and 7 March 2004 the GMB held a strategic planning workshop (“the workshop”) at Troutbeck Inn, Nyanga. Those eligible to attend the workshop were divisional heads and departmental heads. Officers below departmental heads could also attend the workshop if invited.

Murawo was neither a divisional head nor a departmental head.

On 5 March 2004, Murawo attended the workshop and presented his paper. However, it later turned out that Murawo's attendance at the workshop had not been authorised by the GMB directorate. He was, therefore, asked to leave the workshop.

On 6 March 2004, Murawo left the workshop and checked out of the hotel, but remained within the hotel premises because he had a cheque to give to Mrs Zemura (“Zemura”), the GMB's Public Relations Manager, who was participating in the workshop.

However, Murawo's continued presence at the hotel offended the GMB directorate.

Consequently, the directorate called upon Mhonde, Murawo's head of department, to ensure that Murawo left the hotel premises. Subsequently, Murawo left Troutbeck Inn after giving Zemura the cheque that he was supposed to give her.

Thereafter, on 8 March 2004, Murawo was suspended without pay and benefits on the ground that he had committed two acts of misconduct in terms of the GMB Code of Conduct (“the Code”). In relevant part, the letter of suspension, written by Mhonde, reads as follows:

“On Wednesday the 3rd of March 2004, you communicated to me that the Marketing Director had invited you to the Strategic Planning Workshop. This, however, turned out to be untrue.

On Saturday morning, at about 08.30am, on the 6th March 2004, I told you to leave the Troutbeck Inn immediately as you were not invited to the meeting. However, up to lunchtime you were still at the premises and now purporting to have been tasked by the A/CEO to discuss issues related to workers with the Union representatives, Mr Munodawafa and Mr Mhunza, and present them in the seminar. This also turned out to be untrue.

Given the scenario explained above, Management has decided that you be suspended without pay and benefits with immediate effect, and you are being charged in line with the GMB Code of Conduct as follows:

1. Category I section 1: 'Insubordination – wilful and unreasonable disobedience of a lawful order from a superior'.

2. Category I section 5: '…, activities inconsistent with the express or implied condition of his contract of employment.'…,.

In keeping with the provisions of our Code of Conduct you are required to reply in writing answering to the above charges…,. Your reply must, of necessity, cover the following aspects:

(a) Admit or deny the charges.

(b) Facts to be taken into account if you admit the charges.

(c) If you deny the charges, offer an explanation of the basis of your defence…,.”

On 9 March 2004, Murawo replied to the letter of suspension. His letter, in relevant part, reads as follows:

“I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that, since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago.

I prepared a document for presentation. Initially, the presentation was short and just a small section of the presentation of the Engineering Department. I, however, developed a longer presentation which I thought could be incorporated in the Engineering Report. I thought I was contributing to the organisation's cause. I did not know that in doing so I was contravening any section of the GMB Code of Conduct.

Therefore, if at all I contravened category I section 1 and 5 of the Code, the contravention was not wilful.

When I was excused from the activities of the 6th of March 2004, I checked out of the hotel. I, however, realised that I had forgotten to give a cheque I had been asked to bring to Mrs Zemura. As the morning session had already started, I thought it was not wise to disturb the session. I waited for an opportune moment to give the cheque to Mrs Zemura. That moment presented itself at lunchtime and I duly handed over the cheque to Mrs Zemura. At the same time, some apples and potatoes I had ordered away from the hotel, after checking out, were only delivered to me around the same time. I then left for Harare…,.”

On 18 March 2004, Murawo appeared before a disciplinary hearing committee which found him guilty on both counts, and recommended his dismissal. He was subsequently dismissed with effect from the date of his suspension, i.e. 8 March 2004.

Thereafter, on 3 May 2004, Murawo appealed to the Acting Chief Executive Officer (“Muvuti”) against the dismissal. In that appeal he alleged that he had attended the workshop because Mhonde had indicated to him that he (Mhonde) would be comfortable if he (i.e. Murawo) attended the workshop and presented his own paper as an addendum to his (i.e. Mhonde's) report. He also denied being ordered by Mhonde to leave Troutbeck Inn.

Nevertheless, on 30 May 2004, Muvuti dismissed the appeal.

Aggrieved by that decision, Murawo appealed to the Labour Court. After hearing evidence and considering written submissions filed on behalf of the parties, the Labour Court allowed the appeal in respect of the first count, i.e. the count alleging “wilful and unreasonable disobedience of a lawful order from a superior”, but, dismissed the appeal in respect of the second count, i.e. the count alleging that Murawo committed “activities inconsistent with the express or implied condition of his contract of employment.”

Dissatisfied with that result, Murawo appealed to this Court.

The first issue for consideration is whether this appeal raises any question of law.

The issue is important because, in terms of section 92F(1) of the Labour Act [Chapter 28:01] (“the Act”) the only appeal against a decision of the Labour Court which lies to the Supreme Court is an appeal on a question of law.

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 following:

“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 JURISPUDENCE, 12ed, at 65-75, the learned JUDGE OF APPEAL pointed out, at 795 D-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 those principles to the facts of the present case, I have no doubt that the appeal raises a question of law. I say so because one of the issues for determination in this appeal is whether the eiusdem generis rule of statutory interpretation applies to the interpretation of the act of misconduct specified in section 5 of category I offences; the act of misconduct which Murawo was found guilty of.

That, in my view, is a question of law within the second sense of the term “question of law” set out above.

As the appeal raises a question of law, the matter is properly before this Court.

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

Section 98(10) of the Labour Act [Chapter 28:01] 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 ...

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

The appellants were aggrieved by the judgment of the Labour Court and now appeal to this court on the following grounds - “The Labour Court erred, and seriously misdirected itself on a question of law by upholding the termination of the appellants' contracts of employment on notice, and failing to find such termination to be unfair ...

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

The grounds of appeal are far from clear and concise.

SC30-14 : RICHARD CHAYIKOSA vs THE CITY OF HARARE
Ruled By: MALABA DCJ

I have carefully examined the contents of the documents filed of record. The first point to note is that, whilst the applicant complains of having been dismissed by a disciplinary body constituted by employees of the Council, he does not allege that they wrongfully found him guilty of the misconduct charged. An examination of ...

I have carefully examined the contents of the documents filed of record.

The first point to note is that, whilst the applicant complains of having been dismissed by a disciplinary body constituted by employees of the Council, he does not allege that they wrongfully found him guilty of the misconduct charged. An examination of the documents containing the alleged misconduct shows that anyone would have found him guilty of the misconduct. Even on the allegation that the disciplinary committee was not properly constituted, the applicant relied on the case of Zvobgo which was based on different facts. There is no gainsaying the fact that the disciplinary body that dealt with his case was constituted in terms of S.I. 66 of 1992.

After dismissal, the applicant went home and for many years did nothing about the matter. In the meantime, the respondent hired other people, on the belief that the applicant had accepted the outcome of the disciplinary proceedings.

More importantly, the applicant took the matter of the alleged wrongful dismissal to the Labour Court in 2011. Judgment was made against him. He applied for leave to appeal which was refused on 11 May 2012.

The applicant did not make an application for leave to appeal to a judge of this Court until 20 December 2013. A period of 1 year and a half lapsed before this application was made. There is no doubt that this is an inordinate delay requiring an acceptable explanation to be advanced by the applicant. He alleged that his legal practitioners let him down in that they did not advise him that leave to appeal had been refused. It is obvious that for an explanation of the delay to be acceptable there had to be an explanation from the legal practitioner concerned.

The applicant was warned by the respondent, in the opposing affidavit, of the need to obtain an explanation from the legal practitioner. In the answering affidavit, he rebuffed the advice. There is therefore no reasonable explanation for the delay.

There are no prospects of success.

In the light of the absence of a reasonable explanation for the delay, there had to be good prospects of success on appeal. Apart from seeking to rely on the alleged procedural irregularities, there is clear evidence of his having committed the misconduct charged. The allegations of procedural irregularities are unfounded.

The application is dismissed with costs.

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS
Ruled By: ZIYAMBI JA

An application for leave to appeal in terms of section 92F(3) of the Labour Act [Chapter 28:01]. This application was brought before me in chambers in terms of Rule 5 of the Supreme Court Rules.

SC69-14 : CHARLES KAKURIRA vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MALABA DCJ

The applicant is seeking leave to appeal against a decision of the Labour Court dismissing an appeal from a decision of the General Manager of the respondent. The General Manager upheld the finding by the disciplinary hearing committee that the applicant stole the respondent's property. He was dismissed from employment. The learned Senior President of ...

The application has no merit.

The applicant was employed by the respondent as a Station Clerk based in Banket. He appeared before the disciplinary hearing committee. The applicant admitted that he had given three steel sleepers to a lorry driver without authority from his employer. He knew that the lorry driver had previously approached one Chenjerai asking for scrap metal. He was told that there was no property belonging to the National Railways of Zimbabwe which was for disposal.

The applicant knew that the property belonging to the National Railways of Zimbabwe had to be disposed of through a procedure which required that all property be sent to Bulawayo for reclamation. His job involved sending such property from Banket to Bulawayo for proper disposal. Notwithstanding this knowledge, he found it necessary to give the three steel sleepers to the lorry driver. The property was loaded on the lorry in the presence of the applicant. He admitted that it was only recovered when the Station Master saw what was happening and rushed to where the lorry was parked and ordered that the property be off-loaded.

The applicant admitted that the Station Master asked him why he was giving away company property. He said he apologized for his conduct and said that he thought the three steel sleepers were of no value to the National Railways of Zimbabwe. What the applicant told the disciplinary committee was what he had said in a report submitted five days after the incident.

The allegation by the applicant that he thought the property was of no value was false. He knew that it was not his duty to decide whether the property was useful to the National Railways of Zimbabwe or not. He knew that the lorry driver had interest in the property. The procedure for disposing of National Railways of Zimbabwe property was intended to protect railway property from the kind of theft the applicant committed.

When the applicant told the lorry driver to take the property which was taken, he must have intended that the National Railways of Zimbabwe be deprived of its property permanently. The fact that the property was off-loaded from the lorry, on the instruction of the Station Master, did not absolve the applicant of the intention to steal the property.

By virtue of the admissions by the applicant, the facts were common cause. Each of the bodies that considered the question whether or not he was guilty of the misconduct he was charged with had no choice but to return a verdict of guilty.

Accordingly, it is ordered that the application for leave to appeal against the judgment of the Labour Court (LC/H/06/2008) be and is hereby dismissed with costs.

SC16-15 : ELINETH DICK vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

This is an appeal against the judgment of the Labour Court handed down on 17 January 2013.The brief facts of the matter may be summarized as follows. The appellant was employed by the respondent as a manager in its Audit Department. She was allocated for her use, a computer which had an internet ...

This is an appeal against the judgment of the Labour Court handed down on 17 January 2013.

The brief facts of the matter may be summarized as follows. The appellant was employed by the respondent as a manager in its Audit Department. She was allocated for her use, a computer which had an internet facility already installed. The computer and the internet facility were for official use in the course of her employment. On 13 July 2011, she was suspended from employment and on 18 August 2011, after due investigation, she was charged in terms of the respondents' Code of Conduct, under the respondents' most serious category, with two offences, that is:-

(i) Wilfully applying a wrong use, or unauthorised purpose, to assets or to property; or, alternatively

(ii) Carrying out an act which is inconsistent with the express or implied conditions of the contract of employment.

She was found guilty of both charges by both the Disciplinary Grievance Committee and the Appeals Committee, and, as a result, she was dismissed from employment.

Dissatisfied with the penalty of dismissal she appealed to the Labour Court which upheld the dismissal.

The appellant has appealed to this Court on two grounds set out as follows:

1. The court a quo erred at law in upholding the appellant's dismissal on the basis of an IT policy document which was not part of her contract of employment.

2. The court a quo grossly misdirected itself and erred at law in failing to consider relevant issued (sic) placed before it. It ought to have considered and made a finding on whether or not the appellant's computer could have been hacked in the light of evidence placed before it.

The allegation against the appellant was that on 22 April 2010 she had sent a video clip entitled “work done in the kitchen” via email. It was not in dispute that the video clip contained indecent, obscene and immoral material. It was found that the dissemination of such material was contrary to the IT policy of the respondent which formed part of her contract of employment. The offensive material had been sent from her computer during working hours.

At the hearing, counsel for the appellant abandoned the first ground and proceeded to argue on the second ground. Indeed, the decision to abandon the first ground was well advised in view of the fact that paragraph 21 of the appellant's contract of employment specifically incorporated the respondent's office procedures, staff handbook and staff code of conduct. This would obviously include the respondent's IT policy document.

In relation to the second ground of appeal, counsel for the appellant submitted that the court a quo had misdirected itself and erred at law in failing to make a finding on whether or not the appellant's computer had been hacked in the light of evidence placed before it.

It should be noted that although the appellant argued that someone could have hacked her computer and sent the offensive material, she refused to disclose to the Disciplinary Hearing whether or not the person to whom the offensive material was sent was known to her in spite of being questioned directly by members of the Committee.

Counsel for the appellant properly conceded, in our view, that the appellant's refusal to answer the question of whether she knew the recipient, during the disciplinary hearing conducted by the respondent, placed her in considerable difficulty in defending the charges. Although the appellant made the allegation that someone could have hacked her computer she did not place any concrete evidence to support this speculative statement. She did not specify which other persons had access to her computer' s password nor did she state that at the time that the offensive email was sent someone other than herself had access to it.

The court a quo proceeded to draw an adverse inference from her refusal to answer the question as to whether or not she knew the recipient of the offensive material. The court stated, at page 3 of the judgment, as follows:

“During the course of the hearing, the appellant was asked whether or not she knew the recipient address and she declined from answering. This raises the question – why did she refuse to answer? This, in my view, causes this court to draw an adverse inference against the appellant. Thus, it can be concluded that appellant did send undesirable material on email during working hours using the respondent's facility.”

In our view, the court's reasoning in this regard cannot be faulted. It is supported by the case of Reserve Bank of Zimbabwe v Granger & Anor SC34-00 where it was held as follows:

“A gross misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented, or a finding that is without factual basis or based on misrepresentation of facts.”

Taking into account the court's reasoning, there can be no basis for the allegation by the appellant that the decision of the court a quo was irrational as it was based on the evidence that was actually presented.

Counsel for the respondent had claimed costs on a higher scale in his heads of argument. However, during the hearing, he took the view that in the light of the appellant's concessions he would not persist with the claim.

It was therefore the unanimous view of this Court that the appeal was devoid of merit.

Accordingly, we made the following order:-

“The appeal be and is hereby dismissed with costs.”

SC28-15 : ZINWA vs JOSEPH MWOYOUNOTSVA
Ruled By: ZIYAMBI JA, GWAUNZA JA and HLATSHWAYO JA

This is an appeal from a judgment of the Labour Court (KACHAMBWA P) which upheld an arbitral ward against the appellant. It is the appellant's contention that the Arbitrator, sitting as an appeal court, erred in law when it interfered with findings of fact made by the Disciplinary Committee of the appellant ...

SC60-15 : SIMON GAZI vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

This is an appeal against the entire judgment of the Labour Court, handed down on 6 August 2013. The background to the dispute is aptly summarized as follows in the judgment of the court a quo; “1.Appellant was employed by respondent as a painter. He was dismissed from respondent's employ on 10 November 2009 following a ...

This is an appeal against the entire judgment of the Labour Court, handed down on 6 August 2013.

The background to the dispute is aptly summarized as follows in the judgment of the court a quo;

“1.Appellant was employed by respondent as a painter. He was dismissed from respondent's employ on 10 November 2009 following a charge of absence from work for more than 7 consecutive days without a reasonable excuse. Appellant did not attend the disciplinary hearing despite being advised of the date, time, and place for the hearing.

2. Aggrieved, appellant appealed to the respondent's General Manager who dismissed the appeal. On 6 January 2010, appellant referred the matter to a Labour Officer for conciliation. Respondent objected to the Labour Officer's involvement in the dispute arguing that the latter had no jurisdiction to entertain the matter.

3. On 24 May 2010, the arbitrator awarded in favour of the appellant. Respondent filed an application for review to reverse the referral as well as the arbitral award on the basis that they were governed by a Code of Conduct and therefore the conciliator had no jurisdiction. This Court set aside the arbitral award by consent. Appellant then applied for condonation and the application was granted. Appellant then filed this appeal.”

The grounds on which the appellant based his appeal to the respondent's General Manager were as follows:

“11.1 The Area Manager went ahead to give a decision before your office had responded to its call by the union for a Disciplinary Inquiry as provided for under clause 15 of the N.R.Z. Code of Conduct.

11.2 The narration by the Area Manager that we were afforded a chance to be heard does not sit well. The union had asked for an inquiry not a hearing given the seriousness of the confusion by those handling the matter.

11.3 The allegations are pregnant with inconsistencies given that the Personnel Officer, Midlands cleared Mr Gazi of any wrongdoing and the union is at a loss why a sudden turnaround Ref 350417 dated 24 April 2009.”

In spite of the fact that the decision of the disciplinary committee chaired by the Area Manager was effectively a default one, the appellant, as is evident from the above, took the course of appealing against that decision. The disciplinary committee correctly observed, before imposing the penalty of dismissal, that the appellant had deliberately spurned the proceedings and had accordingly denied himself the chance to present a defence and proffer any arguments in mitigation. The General Manager, however, disregarded this procedural faux pas, on the part of the appellant, and proceeded to hear his appeal on the grounds outlined above. He subsequently upheld the dismissal and stated that he 'found no justification to alter the punishment meted out for the following reasons…,.'

The appellant based his appeal to the Labour Court on the following grounds:

1. That the General Manager erred in holding that the appellant was absent without leave because he had not submitted periodic medical booking off certificates as per the dictates of a weekly notice when that is not a requirement in terms of the Labour Act or the Code thereby making the requirement ultra vires the Labour Act.

2. That the General Manager erred in upholding the conviction of the appellant when there was evidence to show that appellant was on sick leave as certified by a registered medical practitioner's sick leave booking which amounts to a reasonable excuse at law.

3. That in the event that the verdict is upheld, the penalty of dismissal was inappropriate and unwarranted in the circumstances.

The court a quo correctly observed from the outset (an observation not disputed by the appellant) that the appellant's grounds of appeal constituted a complete departure from the grounds that formed the basis of his appeal to the respondent's General Manager. If the appellant's appeal to the General Manager against what was effectively a default judgment against him is to be regarded as a form of procedural transgression, it is evident that he compounded this conduct by advancing completely new grounds of appeal before the Labour Court. He therefore effectively enjoined that court to determine matters which:

(a) Had not been placed before the General Manager; and

(b) The respondent had not had the opportunity to consider or make any pronouncement on.

The appellant defended this conduct on the premise that the new grounds constituted points of law, which can be raised at any stage in the proceedings before the courts.

The court a quo commented on the respondent's response to this submission as follows:

“It was argued, strongly, by Mr Chikwaya, for the respondent, that the court should disregard these 'new' grounds as not to do so would seriously prejudice the respondent in particular and employers in general in that employees would bring flimsy grounds before internal hearings and then bring 'real' grounds and evidence before an appellate court.”

The court a quo and this Court, have been directed to the case of Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H which set out the following principle, which I find to be on all fours with the circumstances of this case:

“If, therefore, the applicant was content to appeal against the decision of the lower body on three grounds only, he cannot, in my view, bring on review other grounds which he did not appeal against to the internal appellate body. Even if he was entitled to do so, he would not in any case succeed, because he did not make an issue of them at the hearing…,.

The applicant's failure to raise the other grounds must therefore be construed as waiver of those grounds …,. and it is inappropriate for such person to place before the reviewing court grounds which he did not challenge on appeal to the internal appeal panel. The result is that I will examine only the three grounds on which the applicant appealed to the disciplinary appeal panel of the respondent and not those grounds which are raised for the first time in his founding affidavit. It is appropriate, in my judgment, to take this approach because, where a person has exhausted the domestic remedies available to him, which is what he generally must do then on bringing the entire proceedings on review he must stick to the case which he placed before the domestic appellate body.”

The appellant, in his heads of argument, agrees with the principle set out in Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H and cites other authorities that support such a principle. He aptly cites the following dictum from the case of Donnelly v Barclays National Bank Ltd 1990 (1) SA 375 W…,;

“Secondly, it is clearly a wholly new line of defence now being taken. It was not mentioned in the summary judgment proceedings; not in the plea; it was never referred to in evidence or argument at trial. Its mere novelty, of course, is no ground per se for rejecting it. However, generally speaking, a court of appeal will not entertain a point not raised in the court below and especially not one raised on the pleadings in the court below.”…,.

Counsel for the appellant seems to have latched onto the apparent lifeline thrown to the appellant by this and other similar dicta (see also Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR (1) (S); Goto v Goto 2001 (2) ZLR 519 (S); and Austerlands (Pvt) Ltd v Traded and Investment Bank Ltd & Others 2006 (1) ZLR 371 (S)) to advance the following arguments in the appellant's heads of argument;

(i) That while this principle is correct in relation to ordinary civil proceedings in the High Court and Supreme Court, it is not compatible with the statutory provisions regulating the exercise of power by the Labour Court to the effect that the latter court should not take as strict a view of its jurisdiction.

(ii) That the Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H judgment was based on specific facts of that matter and therefore did not set a general rule that no new matters could be raised which were not raised before the internal tribunal; and

(iii) That, in casu, the point of law in question, that is the issue of weekly notice of an employee on sick leave - was 'fully' covered in the pleadings.

The issues numbered (ii) and (iii) were raised in the court a quo, and, relying on the principle set down in Donnelly v Barclays National Bank Ltd 1990 (1) SA 375 W, the court stated as follows ;

“In principle, a court of appeal is disinclined to allow a point to be raised for the first time before it. Generally, it will decline to do so unless;

(i) The point is covered by the pleadings;

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

(iii) The facts are common cause or well nigh inconvertible; and

(iv) There is no ground for thinking that other or further evidence would have been produced that could have affected the point.”

The learned judge a quo then considered each of these principles in the light of the evidence before him and respectively determined thus in relation to the four principles;

(i) That the point of law at issue was not covered by the pleadings, since all that the appellant did was write a letter to the District Civil Engineer (not the General Manager) protesting his innocence.

(ii) That it was unfair to the respondent to raise the point of law in question for the first time on appeal in that the respondent 'argued its case on the basis that the appellant was absent from duty without reasonable excuse.' Accordingly, the General Manager, who confirmed the dismissal, was not confronted with the argument that the 'bedrock of its case was being challenged.'

(iii) That the facts of the matter were not common cause, as evidenced by the fact that there was a dispute as to whether or not the weekly notice and other related instruments therein, formed part of the appellant's contract of employment; and, lastly

(iv) That had the appellant appeared to argue his case before the disciplinary committee, he could have led evidence regarding the Area Manager's mandate to issue a weekly notice, the nature, validity and effect of such a notice vis a vis employees' rights enshrined in section 14 of the Labour Act, and the parties' conduct regarding this notice prior to the commission of the offence.

The court a quo then concluded as follows;

“In respect of point (ii) above, the appellant sought to argue that the respondent's allusion to 'real' grounds being raised for the first time on appeal, amounted to a concession that the new point had merit. I am not persuaded by this contention. Far from making any concession, it is evident from the context in which the remark was made, that all the respondent meant was that the issue of the validity of the weekly notice was a 'real' issue that should appropriately have been brought before the internal tribunals. This would have afforded such tribunals the opportunity to properly address the merits of the issue, rather than being 'ambushed with it' on appeal.”

I find the court's reasoning and conclusions, as outlined above, to be eminently sound and therefore unassailable.

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

In a judgment delivered on 16 April 2013, the Labour Court set aside an award made by an arbitrator reinstating the appellant to his former position without loss of salary or benefits. In its place, the Labour Court substituted a finding that the appellant was guilty of gross negligence and withholding information. In consequence of ...

This appeal is against that order.

FACTUAL BACKGROUND

The respondent is a Rural District Council set up in terms of the Rural District Councils Act [Chapter 29:13]. Like all other local authorities, it is constituted by elected councillors and salaried employees, the latter falling under the aegis of a Chief Executive Officer.

The appellant was employed by the respondent as its Executive Officer, Finance. In this position, he was the financial advisor to the respondent on all financial issues. He was also responsible for the purchase of all Council assets and controlled all Council income and expenditure.

In a routine audit of Council books, auditors found that statements were not being produced timeously. They recommended that the respondent purchase more computers. Following a meeting of the respondent's Finance Committee, it was resolved to buy four (4) computers for the Finance Department and one for the Audit Department. The four computers for the Finance Department were to enhance Council operations in the income, debtors, and creditors sections whilst the main server was to consolidate and record daily transactions of all sections. As Finance Officer, the appellant was tasked with the responsibility to ascertain the computer specifications necessary for this task and to make recommendations on the suppliers.

The appellant prepared a document for consideration by the Finance Committee. The document, which was presented to the Finance Committee on 4 February 2005, made two recommendations on the hardware specifications. On the server minimum specifications, the appellant recommended a “Compaq Pentium 4-IBM, Dell”. On the workstation minimum specification, he recommended “Compaq Dell/Clone/IBM Microsoft Windows 2000 Professional TM/Windows XP.”

In his presentation to the Finance Committee, the appellant reported that he had received nine quotations, that he had investigated the companies concerned and that, after due diligence, he recommended that the tender be awarded to a company called Powertec Distribution (Pvt) Ltd (“Powertec”).

In its tender, Powertec had quoted the price for five IBM Clone Pentium IV computers. That Powertec had tendered to supply clone computers was not disclosed by the appellant during the presentation before the Finance Committee.

Although a member of the Finance Committee – a councillor - expressed some disquiet on whether the recommendation by the appellant had been prepared after due diligence, the Finance Committee, following assurances by the appellant that he had carried out due diligence, and that the company was reputable, resolved to award the tender to Powertec.

The computers were delivered by Powertec, the delivery note reflecting that what had been delivered were clone computers. The appellant authorized their payments without reference to the Chief Executive Officer. Payment was made on the same day that the computers were received.

It further appears from the papers that the respondent was not entirely happy with the performance of the computers. Consequently, the respondent engaged the services of an information technology expert who advised Council that the computers procured were clones and that clones were not original computers but were assembled using parts from different computers. Attempts to locate Powertec were in vain. The box number reflected on the quotation was found to belong to the Anglican Church. The respondent concluded that Powertec was a briefcase company and that its physical location could not be traced.

Following this development, on 12 May 2005, the respondent charged the appellant with the following:-

(a) Negligence, in that the appellant had failed to take reasonable care to inspect the computers received to ensure they complied with technical specifications, that he had proceeded to pay Z$25 million on a voucher which described the computers as clone, that he had failed to submit the payment voucher to the Chief Executive Officer for his endorsement, and, lastly, notwithstanding that he had not signed the payment voucher, released payment.

(b) Withholding information in that he had inserted a password in the computer system which he refused to disclose on request; that he had collected the tender documents and minutes of the Tender Board meeting from Council offices and had refused to return them; that he had refused, when requested, to disclose the password for the networked computers, by the Chief Executive Officer.

(c) Fraud, in that he misrepresented that he had thoroughly investigated the background of the company, Powertec, and had recommended that it be awarded the tender when, in fact, the company was not operational but was a shelf company.

The disciplinary hearing took place before the Council disciplinary committee on 6 July 2005. The Committee found the appellant guilty of all three charges and, consequently, determined that he be relieved of his duties in terms of the Code of Conduct for the Council.

PROCEEDINGS BEFORE THE ARBITRATOR

The appellant appealed to an arbitrator against the dismissal. Whether or not this was the correct procedure is not an issue before me.

In essence, the arbitrator found that the computers received were in accordance with the quotation. He further found that, since the appellant had not previously received a warning, he was not guilty of negligence. On the charge of withholding information, he found that the computers in question were still functional, and, if not, could have been returned to the supplier. On the allegation of fraud, he found that no evidence of such fraud had been proffered and that, to the contrary, Council operations had been enhanced following the procurement of these computers.

In consequence, he found that the verdict of guilty of misconduct was unlawful and accordingly set the verdict aside and ordered his reinstatement without loss of salary and benefits from the date of his dismissal.

RESPONDENT'S GROUNDS OF APPEAL BEFORE THE LABOUR COURT

Dissatisfied, the respondent appealed to the Labour Court.

In view of the grounds of appeal raised in this appeal, it is necessary to restate those grounds. The respondent's grounds of appeal may be summarized as follows:-

(a) That the arbitrator erred in concluding that, since the appellant was supervised by the Finance Committee and the Chief Executive Officer, he was not responsible for the events that subsequently unfolded following the award of the tender.

(b) That the arbitrator erred in finding that, in terms of the quotation, Council wanted clone computers and not new IBM computers.

(c) That the arbitrator erred in concluding that the computers purchased had been approved by the Finance Committee in circumstances where such Committee had acted on the appellant's advice.

(d) That the arbitrator erred in concluding that, since the appellant had not previously been given a warning, the charge of negligence was not sustainable and the appellant was therefore not guilty.

(e) That the arbitrator erred in concluding that the clone computers were still functional in the absence of evidence. The computers were utilised for less than six months and it became necessary for Council to buy new IBM computers.

(f) That the arbitrator erred in concluding that if the clone computers had been defective, they should have been returned to the supplier, when it was the respondent's case that the supplier was a briefcase company that had given a non-existent address.

FINDINGS BY THE LABOUR COURT

In a judgment delivered on 16 April 2013, the Labour Court set aside the arbitrator's award and in its place substituted a finding of guilty of gross negligence and withholding information. The Labour Court found the appellant not guilty of fraud. It however imposed a penalty of dismissal.

In arriving at the above conclusions, the Labour Court made a number of conclusions:

(i) First, that although the grounds of appeal by the respondent largely raised issues of fact, the “bottom line” was that the respondent was alleging that the arbitrator had misdirected himself on the facts and had, consequently, come to the wrong conclusion.

(ii) That the appellant passed the documents for payment without the authority of the Chief Executive Officer and paid for them immediately without such authority.

(iii) That the computers failed to meet Council standards. As the suppliers could not be traced, Council was forced to purchase more computers.

(iv) That the arbitrator had misdirected himself in concluding that, because the appellant had never previously been warned, he was therefore not guilty of negligence.

(v) That the appellant had admitted that he had released payment without signing the payment voucher.

(vi) That the arbitrator made a finding on the functioning of the computers without evidence on that aspect.

(vii) That on the evidence, negligence had been proved. So was the charge of withholding information. The charge of fraud was not supported by the evidence.

(viii) That the negligence was gross and accordingly that finding was substituted.

(ix) That a penalty of dismissal was, in the circumstances, justified.

APPELLANT'S GROUNDS OF APPEAL IN THIS COURT

Dissatisfied, the appellant noted an appeal to this Court against the decision of the Labour Court. He has attacked the decision on various grounds:

(i) That the appeal before the court a quo was based on issues of fact and not law and therefore incompetent. Relying on the judgment of this Court in Reserve Bank of Zimbabwe v Granger & Anor SC34-01, he submitted that no allegation had been made that there was a misdirection on the facts which was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.

(ii) That there was no basis upon which the Labour Court could interfere with the finding by the arbitrator that the appellant was not guilty of withholding information as no competent ground had been raised in respect of it. In any event, the conclusion was drawn in the absence of a finding that there was an error in the exercise of discretion by the arbitrator.

(iii) That the finding by the court a quo on the issue of negligence, premised as it was on a ground which was meaningless, was incompetent.

(iv) That the penalty of dismissal was ill-founded as the requirements of gross negligence were not met.

RESPONDENT'S SUBMISSIONS ON APPEAL

The respondent does not agree that the court a quo misdirected itself. It has submitted as follows:-

(i) On the charge of negligence, the finding by the court a quo that the arbitrator had misdirected himself could not be faulted as there was no need for previous warnings to be taken into consideration in determining whether or not the appellant was guilty of misconduct.

(ii) On the charge of withholding information, the court a quo was correct in finding that the insertion of a password in the networked computers, the refusal to disclose such password, the collection of tender documents, and refusal to surrender them, constituted withholding information.

APPEAL TO THIS COURT MUST BE ON A POINT OF LAW

It is correct, as submitted by the appellant, that an appeal to this Court must be based on a point of law.

What constitutes a point of law has been stated and restated in a number of decisions of this Court. See for example Muzuva v Limited Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S); Hama v NRZ 1996 (1) ZLR 664; RBZ v Granger & Anor SC34-01.

It is also correct that in RBZ v Granger & Anor SC34-01, this court stated that if an appeal is to be related to the facts, “there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

In my view, the remarks made in RBZ v Granger & Anor SC34-01 need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision. One must, I think, be guided by the substance of the grounds of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner. If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper merely because the words “there has been a misdirection on the facts which is so unreasonable that no sensible person…, would have arrived at such a decision” have not been added thereto. If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective. After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised. See, for example, the case of Sable Chemical Industries v David Peter Easterbrook SC18-10 where it was noted that the words “erred on a question of law” are sometimes included in grounds of appeal but without any question of law actually being raised.

WHETHER APPEAL BEFORE THE COURT A QUO WAS PROPER

The issue that arises is whether the court a quo was correct in concluding that, although inelegantly cast, the grounds of appeal raised an issue of law.

I am inclined to agree with the court a quo that indeed the complaint raised in the appeal was that the arbitrator had misdirected himself on the facts and had consequently arrived at a wrong conclusion. Amongst other things, the reference by the arbitrator to the absence of past warnings resulted in him finding the respondent not guilty of negligence on that basis alone – a finding based on a clear misunderstanding of the facts. The finding that the computers were functioning normally and that Council operations were enhanced was made on no evidence at all.

Clearly, therefore, whilst greater care should have been taken in drafting the grounds of appeal, some of the grounds certainly raised issues of law based on the allegation that the decision was either irrational or not supported by the evidence. I am therefore satisfied that the matter was properly before the court a quo.

However, I also agree that not all of the grounds raised issues of law.

DISPOSITION

The charge of negligence, which was upheld by the court a quo, was based on the conduct of the appellant in processing and receiving clone computers without advising Council and in effecting payment for the clone computers without the authority of the Chief Executive Officer.

Those facts were largely not disputed by the appellant. The decision by the court a quo, to substitute a verdict of guilty of negligence cannot, in these circumstances, be said to be irrational or wrong.

The court found the negligence to be gross on the facts. Considering the appellant's crucial role in the administration of Council funds, that finding cannot be said to be irrational….,.

Given the finding that the appellant was guilty of negligence and that the negligence was gross, I find no basis for interfering with the order by the court a quo upholding the employer's decision to dismiss the appellant.

The appellant occupied a position of responsibility within Council. In financial matters, he was the expert and under obligation to properly advise Council so that correct decisions could be made. As observed during the disciplinary proceedings, councillors who constitute the Finance Committee are politicians and not experts at financial issues and tender procedures. They have to rely on advice given by the appellant as to who should be awarded a tender. That the quotation by Powertec included clone computers was never brought to their attention and it is clear, from a consideration of all the facts that they may have thought that they were buying new, original, brand computers. The clone computers were delivered and irregularly paid for the same day. It is also pertinent to note that the specifications for the server required an original brand name computer, viz “Compaq Pentium 4-IBM, Dell” and not a clone.

In my view, the appellant cannot complain that the penalty of dismissal was inappropriate. The Council was certainly entitled to take a serious view of the manner in which he had misconducted himself.

The appeal must therefore succeed only to the extent that the verdict of guilty of withholding information should be set aside.

In the result, it is ordered as follows:

1. The appeal is allowed to the extent that the verdict of guilty of withholding information is set aside.

2. The appeal is otherwise dismissed with costs.

SC23-12 : MIMOSA MINING COMPANY vs STANLEY SAMUKANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

A point in limine was taken by counsel for the respondent as to whether the ground of appeal raised a point of law. The court is satisfied that the point in limine is unsustainable. The ground of appeal clearly relates to the question whether the court a quo correctly interpreted what constitutes negligence and ...

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The Labour Court was also criticised before us for determining an issue that was not before it as an appeal. The arbitrator did not delve into the disciplinary proceedings instituted by the respondent against the appellant. The record reflects that the arbitrator commented on those proceedings in passing but made no finding one way or ...

SC22-13 : FARM COMMUNITY TRUST vs CLAUDIOUS CHEMHERE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

An appeal from the Labour Court to the Supreme Court, with leave of the Labour Court or the Supreme Court, lies only on a point of law. What constitutes a point of law was described in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) in the following terms: “The twin concepts, questions ...

An appeal from the Labour Court to the Supreme Court, with leave of the Labour Court or the Supreme Court, lies only on a point of law.

What constitutes a point of law was described in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) in the following terms:

“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 & Ors v Press Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A). Approving the discussion of the topic in Salmond on Jurisprudence 12 ed 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. 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 is considered to be the truth and justice of the matter.” 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 the law is on a certain matter.” And, 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.”

See also the remarks of GARWE JA in Sable Chemical Industries Limited v David Peter Easterbrook SC18-10….,.

It was argued, on behalf of the appellant, that the learned president of the Labour Court misdirected herself in concluding that the appeal did not raise issues of law, and that, as a consequence, it was not properly before her.

In my view, the appeal to the Labour Court raised two issues;

(i) Firstly, whether the respondent had been dismissed unfairly; and

(ii) Secondly, whether the award of damages by the arbitrator had been properly quantified.

The second issue certainly raised a question of law.

The learned President in the court a quo concluded that no issues of law had been raised.

I entertain no doubt that the learned President in the court a quo misdirected herself in concluding that the entire appeal was not properly before her as it did not raise issues of law. The issue before the court was whether or not the arbitrator had followed the law in the quantification of damages in lieu of reinstatement. This ground is concerned with issues of law.

The appeal, as it related to the quantification of damages, was therefore properly before the court for determination…..,.

Consequently, in dismissing the appeal on the grounds that it had not been properly placed before it, the Labour Court misdirected itself…,.

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

The second point in limine taken by counsel for the respondent was that the grounds of appeal do not raise questions of law as required by section 92F of the Labour Act [Chapter 28:01]….,. Having come to the conclusion that there is no appeal before the Court, it became unnecessary to decide whether the grounds of ...

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:

1. The appeal is allowed with costs.

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

(i) The appeal is dismissed with costs.

(ii) The appellant shall reinstate the respondent to his former position without loss of salary and benefits or pay damages to the respondent in lieu of reinstatement.

We further indicated that the reasons for our decision would follow in due course. These are the reasons.

BACKGROUND

The appellant was employed by the respondent as a Stores Clerk. On 12 February 2009, he issued a hydraulic pump to another employee without recording the issuance in the Stores Book. After the disappearance of the pump, the co-employee was convicted of theft. The appellant himself was also charged but later acquitted.

Following internal disciplinary proceedings, the appellant was dismissed.

The matter was referred to the relevant National Employment Council and then to an arbitrator. The latter referred the case back to the respondent's Disciplinary Committee to rehear the matter. The Disciplinary Committee found the appellant guilty of theft and that decision was confirmed by the respondent's Appeals Committee.

On appeal to the National Employment Council, it was ordered that the appellant be reinstated.

The respondent then appealed to the Labour Court on the ground that the appellant should have been found guilty of theft.

The Labour Court found the appellant not guilty of theft on the basis of what it regarded as purely circumstantial evidence. Instead, it found him guilty of negligence because of his apparent admission to that effect in the proceedings before the Disciplinary Committee. The court took the view that negligence was a competent verdict on a charge of theft. It also found that the appellant's negligence had resulted in prejudice to the respondent, and, therefore, constituted a grave offence warranting dismissal for a first offence. The court set aside the conviction of theft and substituted a conviction of negligent performance of duty resulting in loss to the employer. It then confirmed the penalty of dismissal.

The appellant now seeks an order for his reinstatement or damages in lieu thereof. His grounds of appeal are threefold:

(i) That the applicable Code of Conduct only permits dismissal for negligence following two prior warnings;

(ii) That the court's finding of negligence was not the subject of appeal; and

(iii) That negligence is not a competent verdict on a charge of theft.

I shall deal, firstly, with the last ground of appeal.

NEGLIGENCE AS COMPETENT VERDICT ON CHARGE OF THEFT

As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases.

By the same token, a disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law. Nevertheless, there are certain basic principles that neither a court nor tribunal can depart from.

One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words, both offences must bear some legally cognisable affinity with one another.

In our criminal law, as is probably the case in any other legal system, the essential elements of theft and offences based on negligence do not share any meaningful convergence. They are sui generis and fundamentally distinct offences. In my view, the same must apply to the treatment of these offences qua acts of misconduct in disciplinary matters.

This is clearly recognised in the Employment Code of Conduct applicable in the present matter – as prescribed in the Collective Bargaining Agreement: Engineering and Iron and Steel Industry (S.I.301 of 1996), amending the principal agreement contained in Statutory Instrument 282 of 1990, S.I.282 of 1990.

The Schedule to the Code of Conduct sets out four broad categories of misconduct and defines the diverse offences constituting misconduct. Negligence is identified as an act of misconduct under item B(4)(b), while the specific offence of theft is captured under item D(c).

They are clearly separate and distinct acts of misconduct.

The appellant in casu was charged with theft as defined in item D(c). The Labour Court found him guilty of negligence. That finding of negligence was clearly not a competent verdict on the particular charge of theft preferred against the appellant. In this regard, the court patently ignored the specific provisions of the Code of Conduct that should have guided its decision in the matter.

In short, as was conceded by counsel for the respondent, in his curious but not inappropriate reference to a malapropism having been committed, the court's finding was grossly erroneous....,.

POWER TO SUBSTITUTE DECISION OR ORDER

Section 89 of the Labour Act [Chapter 28:01] regulates the functions, powers, and jurisdiction of the Labour Court. Section 89(2), in its relevant portion, provides that:

“In the exercise of its functions, the Labour Court may –

(a) 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 appealed against, or substitute its own decision or order.”

It is axiomatic, in criminal as well as disciplinary proceedings, that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged.

The reason for this is obvious, viz: The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence.

In this context, notwithstanding the provisions of section 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence.

Any such action would constitute a blatant miscarriage of justice: see Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S)…,.

Furthermore, sitting as a Court of Appeal, it can only deal with the matter on the basis of the grounds of appeal that have been raised by the appellant: see Chikanda v United Touring Company Limited SC07-99…,.

In the instant matter, it is not in dispute that the appellant was never at any stage charged with negligence. Moreover, the grounds of appeal before the Labour Court were confined to theft, without any reference to negligence, and negligence was not canvassed by the parties in the proceedings before it.

What the court did, by finding the appellant guilty of negligence, was to usurp the functions of the respondent's Disciplinary and Appeals Committees.

It follows that the court fundamentally erred in its finding of negligence, as that was an issue which was clearly not the subject of the appeal before it.

SC64-14 : CENTRAL AFRICAN BATTERIES vs JOHN MHANGU
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

Although the appellant, in its grounds of appeal complained that the award by the Labour Court induced a sense of shock and was contrary to public policy it did not advance any argument in support of those grounds.

SC05-15 : INNSCOR AFRICA (PRIVATE) LIMITED vs TERRENCE GWATIDZO
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

A further aspect, arising from submissions made by counsel at the hearing of the matter, relates to the penalty that was imposed upon the respondent. It was contended on behalf of the respondent that the penalty of dismissal was unduly harsh on the facts of the case, and, additionally, that it did not conform ...

SC18-15 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs B. SHONHIWA and F. GARATSA and P. ZARANYIKA
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

For reasons not apparent from the record, the court a quo ordered that each party should bear its own costs. Since the appellant has not specifically implored this Court to substitute the Labour Court's order in this respect with a different order as to costs, that order will be maintained….,. 1….,. 2. Each party ...

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.

The factual circumstances of this matter are common cause.

The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He was dismissed from employment for disclosing confidential information during conciliation proceedings. He challenged his dismissal on the basis that it was an unfair dismissal and noted an appeal to the Labour Court. The Labour Court dismissed the appeal on the main ground that the appellant did violate the respondent's Code of Conduct in that he did not follow the laid down procedures on the obtaining and disclosure of confidential information.

The appellant was aggrieved by the decision of the Labour Court and has approached this Court on the grounds summarised below;

1. The court a quo misdirected itself and erred at law entirely in not finding that the disciplinary procedures set down in the Code of Conduct of the respondent were not followed thereby rendering the dismissal both substantively and procedurally wrong.

2. The court a quo further erred in rejecting the appellant's defence that the disclosure of the company information was not in breach of section 3(4) of Schedule 1 of the Employment Code of Conduct for the respondent as read with Part C 10.2.

3. The court a quo erred and misdirected itself at law in finding that the appellant was not unfairly dismissed.

Procedural Irregularities

The Labour Court did not address the issue of procedural irregularities in its judgment even though it had been raised as a ground of appeal.

Be that as it may, the appellant avers that the hearing authority that summarily dismissed him was not properly constituted, a circumstance that he argues rendered the disciplinary proceedings a nullity. The appellant, however, does not elaborate on this averment either in his grounds of appeal or in his heads of argument.

As correctly contended for the respondent, it is not enough to merely allege, as the appellant does in his heads of argument, that:

“In terms of the Code of Conduct for the respondent's entity, the hearing authority must be either, a Line Supervisor, Section Head, or Head of Department. This was not the composition of the Hearing Authority that dismissed the appellant.”

The appellant should have explained in what way he perceived the Code of Conduct to have been violated, at what stage of the proceedings this might have happened, and who, in his opinion, should have properly constituted the disciplinary authority.

The respondent, in any case, disputes that the disciplinary authority was not properly constituted....,.

I find..., that the appellant has failed to place before the court sufficient evidence for a proper determination of whether or not there was a fatal irregularity in the conduct of the disciplinary proceedings. The onus to prove his case on this point lay on the appellant, and it is abundantly clear that he has failed to discharge it.

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

As regards the finding that the appellant was guilty of withholding evidence, I agree with the appellant that this was not an issue that had been raised by the respondent in its grounds of appeal against the award made by the arbitrator. Accordingly, it was not competent for the court to deal with that issue ...

SC09-16 : PETER MAFUNDA vs ZIMBABWE ENERGY REGULATORY AUTHORITY
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and UCHENA JA

Counsel for the respondent submitted that there is no valid appeal before the court as there is no appeal on a point of law….,. Counsel for the respondent's submission that there is no appeal on a point of law has no merit. The appeal is against the court a quo's interpretation of section 14 ...

SC22-17 : EDWARD MISIHAIRAMBWI and 14 OTHERS vs AFRICARE ZIMBABWE
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

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 ...

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

THE COURT A QUO'S DECISION ON QUESTIONS OF FACT The evidence led before the hearing committee which the NEC Appeals Committee and the Labour Court relied on does not disclose how it could be said that the court a quo misdirected itself in the manner alleged in grounds of appeal Nos.1, 2, 5 and 6. The ...

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. 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….,. Merely using the words 'erred ...

In terms of the Labour Act [Chapter 28:01], an appeal on a point of law only, lay, with leave, to the Supreme Court.

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….,.

Merely using the words 'erred in law' does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined.See Small Enterprises Development Corporaton v David Chemhere SC23-02.

In that connection, it has been held that a serious misdirection on the facts would amount to a question of law.See National Foods v Mugadza SC105-95; Hama v National Railways of Zimbabwe SC96-96.

A finding that the delay in making an application is inordinate and the explanation for the delay unreasonable is a factual finding. See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (SC); Vimbai Mbisva v Rainbow Tourism Group Limited t/a Rainbow Hotel & Towers SC32-09; Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S)…,.; Chinyange v Jaggers Wholesalers SC24-03.

Such a finding does not qualify as a point of law unless it is grossly unreasonable, that is, unless it is a finding that no reasonable court faced with the same facts would have made. No allegation of gross unreasonableness has been made nor is any apparent on the record.

Accordingly, this ground of appeal, not being on a point of law, is invalid….,.

As to the second ground of appeal, that of a misdirection at law by that court in ruling that the appellant had no prospects of success on appeal in the main matter, is vague and embarrassing to say the least.

The appellant has not indicated, in this ground of appeal, what point of law is to be determined on appeal.

A finding that there are no prospects of success on appeal was made by the court a quo. Simply to allege a 'misdirection in law' by the court without alleging the nature of the misdirection does not advise this Court of the point of law on which its decision is required.

The second ground of appeal is also invalid in that it does not disclose a point of law.

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

It is settled law that an Appellate Court can only interfere with the findings of fact made by a lower court in exceptional circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of 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 such a conclusion….,.”

In Susan Rich v Jack Rich SC16-01, EBRAHIM JA cited with approval the remarks in HOFFMAN and ZEFFERT, The South African Law of Evidence, 4th ed…, that:

“There are no rules of law which define circumstances in which a finding of fact may be reversed, but, as a matter of common sense, the Appellate Court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility.

The Appeal Court has rather more latitude in criticizing the reasons which the court a quo has given for its decision.

The reasons given for accepting certain evidence may be unsatisfactory, eg. they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, eg. a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact.

Where there has been no misdirection of fact by the trial court, the Appeal Court will only reverse it when it is convinced that it is wrong.”…,.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a mis-direction on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision; and, a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

In Zvokusekwa v Bikita Rural District Council SC44-15 this Court clarified this obvious but often misunderstood position. It said;

“[20] It is correct, as submitted by the appellant, that an appeal to this Court must be based on a point of law.

What constitutes a point of law has been stated and restated in a number of decisions of this Court. See for example Muzuva v Limited Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S); Hama v NRZ 1996 (1) ZLR 664; RBZ v Granger & Anor SC34-01.

[21] It is also correct that in RBZ v Granger & Anor (supra), this Court stated that if an appeal is to be related to the facts, 'there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who has applied his mind to the facts would have arrived at such a decision. And a mis-direction of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.'

[22] In my view, the remarks made in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form.

Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.

If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led, or was not supported by such evidence, such a ground cannot be said to be improper merely because the words 'there has been a misdirection on the facts which is so unreasonable that no sensible person…, would have arrived at such a decision' have not been added thereto.

If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective. After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised. See, for example the case of Sable Chemical Industries v David Peter Easterbrook SC18-10 where it was noted that the words 'erred on a question of law' are sometimes included in grounds of appeal but without any question of law actually being raised.”

See also Kukwenge v Clan Transport Co. 2001 (1) ZLR 199 (S) and Mutsuta and Another v Cagar (Pvt) Ltd 2009 (2) ZLR (S).

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 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.

SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

This is an appeal against the whole judgment of the Labour Court delivered on 14 July 2017 which dismissed with costs an appeal launched in that Court by the appellant against the decision of the respondent's Appeals Committee dated 20 July 2016.

The Appeals Committee upheld the decision of the respondent's Disciplinary and Grievance Committee which found the appellant guilty of 'deliberate misrepresentation of facts' in the declaration of assets. It dismissed the appellant from employment with effect from 31 March 2016.

BACKGROUND

The appellant was employed by the respondent as a Revenue Officer based at Beitbridge Border Post. In terms of Clause 16 of his contract of employment he was required to declare any newly acquired assets, which declaration would be verified by the respondent. A failure to declare assets or making a false declaration amounted to an act of misconduct.

Indeed, deliberate misrepresentation of facts in the declaration of assets is listed as Serious Offence number 26 under acts of misconduct carrying a maximum penalty of dismissal for a first offence in the respondent's registered Code of Conduct. The Code was registered by the Registrar of Labour Relations on 3 February 2003.

Sometime in 2015 the respondent commenced an exercise to conduct a lifestyle audit for members of staff. This was designed to fight the scourge of corruption bedevilling the organisation, creating a bad image, and undermining public confidence in the revenue collecting institution. The lifestyle audit was being undertaken by the respondent's Loss Control Division.

The appellant is one of the staff members affected by the exercise.

A Bank search resulted in the unearthing of a Stanbic Bank account in the name of the appellant in which regular deposits in varying amounts were made by different people. Between August and October 2015, twelve (12) separate deposits with a total amount of US$57,598=30 had been deposited in that account attracting the attention of Loss Control Officers. Upon being questioned about the money, the appellant gave an explanation in affidavit form.

He stated that the money constituted repayments of loans he had advanced to other people, payments for goods sold to some people, and bribes received for undervaluing certain declared goods as well as avoidance of seizure of goods as required by the respondent's procedures.

The appellant later recanted that affidavit statement insisting it had been made under duress as he was intimidated by Loss Control Officers.

Previously, on 25 October 2011, the appellant had, in accordance with his contractual obligations, completed an asset declaration form in which he declared only household effects as assets that he owned. On 11 June 2013, the appellant completed another Asset Declaration Form in which he declared a Honda CRV motor vehicle he had acquired in June 2012 and an FBC Bank account opened in 2011.

On 22 January 2014, the appellant again completed an asset declaration form in which he declared a Toyota Mark X motor vehicle acquired on 5 January 2014.

Finally, on 23 October 2015, he completed an asset declaration form which formed the basis of the misconduct charge preferred against him. In that form, the appellant repeated the declaration of the Toyota Marks X declared on 22 January 2014 and the FBC Savings account opened in August 2011 with a bank balance of $100. The bank account had also been declared previously on 11 June 2013.

As I have said, investigations by the respondent revealed that at the time the appellant made the asset declaration of 23 October 2015, he had a pre-existing Stanbic savings bank account which had an inflow of deposits. It had a balance of US$57,598=30. He had converted that account to a savings account by letter to the Bank manager dated 8 July 2015.

The appellant failed to declare that asset in the declaration form.

On 31 March 2016, the appellant was suspended from duty without pay and benefits in terms of Clause 10.1(ii) of the respondent's Code of Conduct. He was charged under the Code of Conduct, Group D, Serious Offences, Category 26; that is, deliberate misrepresentation of facts in the declaration of assets.

The Disciplinary Committee found that the appellant had indeed completed the asset declaration form in question which did not have the Stanbic account and the money declared. It found that there is no form signed by the appellant in which that asset was declared even though the account had been converted to a savings account on 8 July 2015. Accordingly, the appellant was found guilty and dismissed from employment.

The appellant appealed to the Appeals Committee which upheld the decision of the Disciplinary Committee. The Appeals Committee reiterated that the asset declaration form required employees to give a correct record of all the assets, investments, and businesses owned fully or jointly by them. The appellant had failed to do so and was therefore correctly found guilty and dismissed from employment.

Again, the appellant was aggrieved. He lodged an appeal to the court a quo on several grounds.

The essence of his appeal was that he had submitted a separate asset declaration form to the respondent's Human Resources Department in which he had declared the asset held in the Stanbic savings account. That declaration form had gone missing in that department. Both the Disciplinary and Appeals Committees had made “an unreasonable and outrageous finding of fact” that no declaration had been made because the respondent's filing system was in a state of a shambles.

The court a quo found that nothing had been advanced by the appellant justifying interference with the factual findings of the tribunal below and that the Stanbic account had not been declared by the appellant. It found that there was no basis for interference because there was nothing on record pointing to the fact that the appellant ever made a separate declaration of the Bank balance and no date of such a declaration was suggested.

In arriving at that conclusion the court a quo reasoned at p2 of the cyclostyled judgment:

“The appellant did not declare everything. The affidavit in question was made voluntarily and without any undue influence being brought to bear on the appellant. There is therefore no reason why the Bank account in question was not declared. In the result, the respondent's Appeals Committee was correct to have found that the offence against the appellant had been proved on a balance of probabilities. It upheld the dismissal.

In Barros v Chimpondah 1991 (1) ZLR 58 (S) the Supreme Court stated that a decision from a lower tribunal should only be interfered with if it is plainly wrong.

I am not able to say the decision of the Appeals Committee is 'plainly wrong'. I also find that the Appeals Committee considered all the evidence before it, before coming to its conclusion.”

Still, the appellant was not satisfied. He appealed to this Court on the grounds that follow;

GROUNDS OF APPEAL

Three grounds of appeal are relied upon by the appellant. They are:

1. The court a quo grossly erred and misdirected itself by dismissing the appellant's appeal on the basis that the appellant failed to prove he had submitted the declaration form and that he had declared all assets when evidence on record showed that the respondent's system of submitting the declaration forms had no records and/or registers of submission and had no clarity on how the forms ought to be filled which defect was conceded by the respondent.

2. The court a quo grossly erred and misdirected itself by dismissing the appellant's appeal and thus allowing the respondent to benefit from its own wrong emanating from its shambolic declaration of assets system, which it charged the appellant for failure to comply with and which system it had to adjust and amend after the appellant's disciplinary hearing.

3. The court a quo grossly erred and misdirected itself in making a finding that the respondent had proved the guilt of the appellant on a balance of probabilities as the system of submitting asset declaration forms was in shambles and had no certainty such as to prove someone submitted or did not submit a form.

I have to point out that the first ground of appeal does not raise a point of law at all.

In terms of section 92F of the Labour Act [Chapter 28.01], in terms of which this appeal is made, an appeal to this Court, from any decision of the Labour Court, lies on a question of law only.

The point was made in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…, that the phrase 'question of law':

“(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 considers 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.

I respectfully adopt this classification, although the third sense is of no relevance to a matter such as this.”

The first ground of appeal clearly addresses factual issues and not any question of law. It falls far too short of the requirements. There is no basis for this Court to exercise jurisdiction over the issue raised in that ground which fails to raise any question of law. See Hlahla v OK Zimbabwe SC64-04.

The first ground of appeal will not be entertained because it has not been suggested nor shown that the factual findings of the lower court being contested were grossly unreasonable. Neither has it been suggested nor shown that there was such serious misdirection as to amount to a misdirection of law. It is only in such circumstances that this Court would have a foothold for interference.

As eminently articulated by this Court, with considerable eloquence, in Mazunze v Lobels Brothers SC96-02…,:

“This was quite clearly a finding of fact.

I agree with Mr Ncube, for the respondent, that it cannot be appealed against in terms of section 92(2) of the Act unless it was accompanied by a serious misdirection amounting to a misdirection in law or the decision was so outrageous in its defiance of logic that no reasonable court properly applying its mind could have come to it. The notice of appeal contains no allegation of such a misdirection in law or irrationality by the tribunal. It raises no question of law, and is, therefore, fatally defective and void.”

See also Zinwa v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.

The same applies to the first ground of appeal in the present appeal.

In fact, even the second ground could have been crafted in a more elegant manner because it also does not contain a proper allegation of a misdirection at law or the irrationality of the decision of the court a quo.

As I said, this Court will not exercise jurisdiction over the first ground of appeal as it is fatally defective. That ground therefore stands to be struck out. It is accordingly struck out.

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....,.

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

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

Section 92F of the Labour Act [Chapter 28:01]..., provides:"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 Labour Court.(2) Any party wishing to appeal from any decision of the Labour Court on a ...

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

The appellant was discharged from the Public Service. He had been suspended from duty by the Secretary to his Minister, and, later, served with charges to which were attached certain documents. The letter containing the charges was signed by a Mr Moyo on behalf of the Secretary to the Ministry.

The appellant duly replied, in writing, to the allegations. He required other documents.

He was not supplied with copies of those documents, nor were his legal practitioners, who also demanded copies of them. He was, however, allowed access to them and to make notes.

The Public Service Commission (“the Commission”) held its enquiry, and, as a result, the appellant was found guilty of misconduct and discharged.

He took the matter on review; the sole point of review being, that, the audi alteram partem rule had been breached because of the respondent's failure to supply the requested documents.

The learned judge a quo rejected that argument.

He was right to do so.

The appellant had access to all the relevant documents. He was supplied with some documents along with the charges, and was given access to the others. His legal practitioner had the opportunity to examine the documents, though it is not clear whether he did so. He replied to the charges, in writing, at some length.

In general, on the audi alteram partem rule and its applicability to proceedings under Public Service disciplinary regulations, see Jiah & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 (S); Chitzanga v Public Service Commission HH28-00.

This was not a case like Binza v Acting Director of Works 1998 (2) ZLR 364 (H), where the employee and the court were denied access to the relevant documents.

Before this Court, the appellant took a different line. He raised several new points for the first time.

As he correctly stated, points of law can be raised for the first time on appeal.

In addition, the appellant is a self-actor, and the courts, within limits, always give the greatest latitude to self actors.

The appellant argued that the disciplinary proceedings were void ab initio on several grounds –

(1) The suspension was defective;

(2) Even if the suspension was valid, it lapsed automatically after three months, as the charges did not involve financial prejudice to the State;

(3) The charges were invalid, having been preferred by someone other than his head of office, head of department, head of ministry, or the Commission itself;

(4) The charges were fatally defective.

He also argued that his case was not fairly considered, in that –

(5) The Commission did not verify the truthfulness or otherwise of his answers to the misconduct charges by referring to documents referred to it by the appellant;

(6) Information favouring the appellant, and which was available to the Commission, was not placed before it;

(7) There were serious disputes of fact which could not be resolved on the papers only;

(8) The Commission misdirected itself in law in a number of ways.

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....,.

I..., 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.

Quite apart from the fact, that, 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, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit.

The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.

Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken.

The issue of what is a question of law has been addressed in a plethora of cases: see, for example, Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

The respondent submitted, that, the appellant should have expressly stated, in its grounds of appeal, that, the factual findings of the court a quo are gross as to amount to a question of law.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01, MUCHECHETERE JA..., said:

“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision: and, a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

These remarks were qualified by GARWE JA in Zvokusekwa v Bikita Rural District Council SC44-15 as follows:

“In my view, the remarks made in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form.

Legal practitioners often exhibit different styles in formulating such grounds. What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law.

The court was of the view that the grounds of appeal raised by the appellant, in essence, attacked the alleged failure by the court a quo to consider relevant facts which failure led to an error at law.

The grounds complied with the requirements of section 92F of the Labour Act [Chapter 28:01] and therefore the point in limine was dismissed.

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”The following are the reasons:BACKGROUND FACTSThe appellant ...

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:

“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”

The following are the reasons:

BACKGROUND FACTS

The appellant was employed by the respondent as a Human Resources Superintendent on 1 November 2006. He was based at the Head Office in Harare. In February 2009 he was transferred to Renco Mine. His contract of employment provided for, amongst other things, locality allowance, leave bonus, and a company vehicle which was to be fuelled and maintained by the company.

In February 2009, as happened nationwide, the respondent shifted from the use of the Zimbabwean dollar to the United States dollar when the Zimbabwean dollar became moribund.

On 19 February 2009, the respondent wrote a letter to the appellant notifying him, that, following the adoption of the United States dollar, his salary would be US$4,147=43 per month.

The letter was silent on allowances.

On 21 March 2009, through an office memorandum, all the respondent's employees were notified of the changes in their salaries and allowances. The memorandum provided, that, the respondent had implemented salary scales based on regional 'SADC' rates for employees in all grades. Consequently, transport and meals allowances, together with leave bonus payable when employees proceeded on annual leave, were to fall away with effect from 1 March 2009 for all employees in Grade 10 and above. Transport and meals allowances were also removed for employees in Grade 10 and above.

The respondent further indicated that the employees would be kept abreast of further changes.

Following the adoption of the United States dollar, the appellant was being paid a globular salary without any allowances. The respondent did not provide the appellant with the motor vehicle, but, rather, supplied him with fuel and paid for the maintenance of his personal car.

This was regardless of the fact that the respondent's contract of employment stated that he was entitled to allowances and a motor vehicle maintained by the company.

In June 2014, the appellant raised a complaint of unfair labour practice with the Labour Officer. He demanded payment of the following:

1. Outstanding locality allowance for the period from February 2009, when he was transferred to Renco Mine, up to the time when he made the complaint in June 2014;

2. Leave bonus from 2009 to 2013; and

3. Mileage for use of his personal motor vehicle from 1 March 2007 up to the time of the making of the claim.

At conciliation, the parties failed to reach a settlement and the matter was referred to arbitration.

Before the arbitrator, the appellant argued, that, he was entitled to payment of outstanding locality allowances and leave bonus and to a motor vehicle coupled with its maintenance and repairs. The appellant had been using his personal vehicle for the respondent's business as the respondent had failed to provide the motor vehicle. For this reason, he claimed compensation on the mileage of his vehicle on the same basis as if it was on hire to the respondent.

The appellant also contended, that, the respondent had unilaterally varied the contents of the contract of employment.

The respondent raised a preliminary point.

It was to the effect, that, in the event that the appellant's contract was found to have been violated, the appellant's claims had prescribed in terms of section 94(1)(b) of the Labour Act [Chapter 28:01] (herein after referred to as 'the Act').

The respondent also argued, that, none of the respondent's contractual benefits were being violated.

The arbitrator dismissed the preliminary point.

In his award, he made the finding, that, all the claims made by the appellant had been sustained. He thus ordered the respondent to pay the sum of US$197,563 for compensation as had been claimed by the appellant. This was to be paid in two equal monthly instalments of US$98,781=50 with the final payment being paid not later than 1 October 2014.

APPEAL TO THE LABOUR COURT

Dissatisfied with the arbitrator's ruling and award, the respondent appealed to the Labour Court.

A number of grounds of appeal were raised. The court a quo summarized them to amount to:

1. That prescription applied to the claims and those claims that were older than two years had prescribed in terms of section 94(2) of the Labour Act [Chapter 28:01].

2. That the contract of employment was varied by the office memorandum, and by conduct, and that the arbitrator therefore erred at law in his interpretation of the facts.

3. That, there was no prejudice to the employee's remuneration as occasioned by the new method of payment.

4. That, the arbitrator had grossly misdirected himself in the relevant findings of fact so much as to amount to a misdirection at law.

After hearing the parties, the Labour Court allowed the appeal and set aside the arbitral award.

The Labour Court accepted the argument presented by the respondent. It came to the conclusion, that, once an infraction has occurred, and becomes known by the affected party, it prescribes if it is not actioned within two years from the date when the dispute first arose.

The court ruled, that, all the outstanding claims that were more than two years when the claim was instituted by the appellant had prescribed.

On whether or not there was unilateral variation of the contract, the Labour Court found, that, the contract had been unilaterally varied by the respondent.

In its judgment, the Labour Court stated, that, although there was unilateral variation of the contract by the respondent - for five years the appellant received his salary without any complaint. By so doing, the appellant, who was a human resources practitioner, had demonstrated, by conduct, that he accepted the new salary structures.

As a result, the allowances claimed by the respondent were no longer claimable as there was now a new contract in existence.

The Labour Court further found no merit in the appellant's claim which was based on the contention that he had been hiring out his personal motor vehicle to the respondent.

The court a quo found, that, there was no standing agreement between the parties to that effect, and, therefore, to say that the appellant had hired out his vehicle to the respondent would amount to overstretching the contract.

THIS APPEAL

The appellant was aggrieved by the judgment of the court a quo and appealed against its decision on the following grounds:

1. The Labour Court fundamentally misdirected itself on a question of law in failing to find that the claims of the Appellant had not prescribed, they being claims arising from unfair labour practices of a continuing nature covered by section 94(2) of the Labour Act.

2. The Labour Court further erred on a question of law in finding that the contract of employment between the Appellant and the Respondent had been varied such that the appellant would not be paid the claimed allowances.

3. The Labour Court further erred in law in failing to award the Appellant compensation in respect of the usage of his motor vehicle for the business purposes of the respondent.

At the beginning of the hearing, counsel for the appellant indicated that he was abandoning the third ground of appeal which related to the issue of the motor vehicle.

Notably, this ground formed the bulk of the appellant's claim. He therefore restricted his argument to the first two grounds which relate to the claims for outstanding locality allowance and leave bonus.

SUBMISSIONS ON APPEAL

Counsel for the appellant's contention was that the Labour Court erred in ruling that the appellant's claims had prescribed and he placed reliance on section 94(2) of the Labour Act.

He argued, that, the unfair labour practice commenced in March 2009 and continued until the matter was brought to the attention of the Labour Officer and to the Labour Court.

The gravamen of his argument is that the dispute was of a continuous nature, and, therefore, on the basis of section 94(2) of the Labour Act, no prescription could run.

He further contended, that, the appellant's rights, conferred by the Labour Act, were “frozen” during the period of his employment. Therefore, any infractions of these rights could only be actioned after termination of the employment relationship.

On variation of the contract of employment, the contention was that the introduction and operation of multi-currencies, in February 2009, did not operate to vary the contracts of employment in any way.

The respondent remained indebted in respect of the appellant's allowances.

Secondly, the memorandum issued in March 2009 was a unilateral act by one party to a contract of employment and did not have the effect of validly taking away vested rights.

Counsel for the respondent submitted, that, the rights accorded by the Labour Act are not “frozen” as there are remedies provided by the Labour Act for any infraction of the rights. He described the appellant's contention as “judicial heresy.”

Counsel for the respondent further submitted that section 94 of the Labour Act must be read together with section 8 of the same Act.

Section 94 of the Labour Act limits itself to unfair labour practices and these the appellant had not been able to identify. For this reason, he submitted, the protection of section 94 of the Labour Act was not available to the appellant.

The kind of infractions that the appellant complained about are infractions that gave him a full and competent cause of action within a period of two years. He submitted that the appellant's suggestion, that the two year period must be counted starting from after the end of the employment relationship, is not worthy of any notice due to its frivolity.

ISSUES FOR DETERMINATION

The issues for determination by this court are:

1. Whether or not the appellant's claim had prescribed in terms of section 94 of the Labour Act [Chapter 28:01]....,.

THE LAW

Section 94 of the Labour Act [Chapter 28:01] provides as follows:

“94 Prescription of disputes

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

(a) It is referred to him; or

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

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

A literal reading of the above provision is that adjudication of any dispute of unfair labour practice is restricted to disputes that will have occurred within two years from the date when the dispute or unfair labour practice first arose. However, the exception to that rule is that, if an unfair labour practice is continuing at the time it is referred, or comes to the attention of the labour officer, then, the two-year prescription period in subsection (1) does not apply.

The appellant's submission is, that, when he first complained of the non-payment of the locality allowance and motor vehicle allowance, the unfair labour practice was 'continuing' and therefore none of his claims had prescribed.

The term 'cause of action' was defined in Peebles v Dairiboard (Pvt) Ltd 1999 (1) ZLR 41 (H)…,. MALABA J…, stated:

“A cause of action is defined by LORD ESHER MR in Read v Brown (1888) 22 QB 131, as, every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”

In other words, a cause of action arises when there is an entire set of facts which entitle one to make a claim.

In light of that, in casu, a new cause of action would have arisen every month when the respondent failed to pay the appellant's locality allowance and every year when it failed to pay the leave bonus. Whenever an arrear of locality allowance accumulated, that would have constituted an entire set of facts which could give rise to a cause of action and which would have entitled the appellant to successfully file a claim against the respondent.

Thus, the appellant would have had a legitimate cause to raise a complaint with the Labour Officer each time the allowances were not paid in terms of the contract and each time when the annual bonus was not paid in terms of the contract.

Each non-payment, on its own, would be enough to constitute a cause of action which entitled the appellant to file a claim.

Whenever there was non-payment of the appellant's perceived dues, that would be a complete infraction.

For that reason, it cannot be said that the unfair labour practice would have been continuous in nature and therefore not subject to prescription.

A continuous unfair labour practice was outlined in the South African judgment of National Home Builders Registration Council v Nehawu obo Siza Nghulele & 2 Ors (JR 2020/13) 2016 ZALCJHB 209 wherein it was stated:

“[7] In respect of the first point, it was held, in SABC Ltd v CCMA & Others, that:

'While an unfair labour practice/unfair discrimination may consist of a single act, it may also be continuous, continuing, or repetitive. For example, where an employer selects an employee on the basis of race to be awarded a once-off bonus this could possibly constitute a single act of unfair labour practice or unfair discrimination because, like a dismissal, the unfair labour practice commences and ends at a given time.

But, where an employer decides to pay its employees who are similarly qualified, with similar experience, performing similar duties, different wages based on race or any other arbitrary grounds, then, notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive.

The discrimination, in the latter case, has no end, and is, therefore, ongoing and will only terminate when the employer stops implementing the different wages.

Each time the employer pays one of its employees more than the other he is evincing continued discrimination.'

Although, in this instance, the employee's claim to higher grading and remuneration was squarely based on the applicability of the applicant's Career Path and Retention Strategy for Technical Staff policy, the principle of the continuous nature of the alleged unfair labour practice, in my view, is indistinguishable from that in the SABC case.

Accordingly, he was entitled to raise the claim, not only within 90 days of not receiving the advancement, but for so long as he was denied it. Consequently, the first in limine point must fail.”

See also South African Broadcasting Corporation Ltd v The Commission for Conciliation Mediation and Arbitration & 2 Ors (JA 36/07) [2009] ZALAC 13; [2010] 3 BLLR 251 (LAC).

In casu, the claims would not have been dependent on each other so as to render them to be continuous in nature.

The cause(s) of action in the present matter, if existent, would have been subject to prescription just like any other debt.

If a claim was not made within the defined time lines, it would have prescribed.

The appellant would have had a complete cause of action entitling him to make a claim whenever there was non-payment of allowances and bonus.

There was no reason for the appellant to wait until there was termination of the employment relationship.

The Labour Act is not frozen during the subsistence of an employment relationship, as was stated by the appellant. A breach of rights conferred by the Labour Act can be remedied during the subsistence of the employment relationship and within the two years from the date of commencement of the unfair labour practice.

The claim against the respondent is that it did not pay locality allowances and leave bonuses since March 2009. The appellant only filed his claim in June 2014.

In light of the principles discussed above, each of the monthly locality allowance arrears and leave bonus payments would have been subject to a prescription period of two years.

Counsel for the appellant submitted, before us, that, this court could consider the claims that were less than two years old and had thus, according to him, not prescribed as at the time of the raising of the claims in June 2014.

In response thereto, counsel for the respondent submitted, that, the court could not do so as that was never the appellant's case in any of the proceedings a quo, whether before the arbitrator, or the Labour Court.

It is trite that a litigant cannot argue, on appeal, a case different to that presented in the proceedings a quo.

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

It being an entrenched position in our law that one appeals against the order of court and not the reasons...,.

SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.

The order of the court a quo erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had, by consent of the parties, been removed from the roll of urgent chamber matters, on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents answering affidavits and heads of argument on 2 November 2018.

The erroneous order was, with the consent of the parties, corrected by this Court in terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13] in Civil Appeal No. SC527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.

The corrected order of the court a quo, therefore forms the basis of the present appeal.

THE FACTS

The appeal concerns a church dispute between two formations for the control and leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church).

The appealed judgment is a consolidation of two applications that were filed separately by the parties.

The first application, HC9149/18, was filed by the first five respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba and Tawanda Nyambirai) against the seven hominal appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Donard Mdoni, Arthur Nhamburo and M. Mashumba) on 4 October 2018; while the second application, HC179/19, was filed by the first five appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata and Apostolic Faith Mission in Zimbabwe) against the second (Aspher Madziyire), third (Amon Madawo), sixth (Clever Mupakaidzwa), seventh (Briton Tembo) and eighth (Christopher Chembere) respondents on 10 January 2019.

In the first application, the respondents sought the nullification of a meeting held by the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief.

The High Court granted the first application and dismissed the second, with costs.

The church is a universitas with a written Constitution and consequent regulations, which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6(f) and 12.4.1, respectively.

The dominant protagonists in the two applications were the second respondent (Aspher Madziyire) and the first appellant (Cossam Chiangwa), respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third (Amon Madawo) and fourth (Munyaradzi Shumba) respondents were elected, at the same elections, as General Secretary and National Administrator.

Between August 2015 and 15 September 2018, the Church, led by the Apostolic Council and Workers Council, conducted a Constitutional Review Process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent (Tawanda Nyambirai), a co-opted member of the Apostolic Council.

The Constitutional Review Process (CRP) was designed to address acute electoral, financial, and governance shortcomings through the amendment of the Constitution and geared to deliver free, fair and credible church elections; strengthen accountability and transparency; and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas.

The Constitutional Review Process (CRP) culminated in the Extraordinary General Meeting (EGM) of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections, due on 28 April 2018, after “the Workers Council considers, and, if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018.

The meeting of 28 April 2018 was terminated unceremoniously without resolving the proposed resolution.

Tonderai Mathende took the Church, the first (Apostolic Faith Mission in Zimbabwe), second (Aspher Madziyire) and fifth (Tawanda Nyambirai) respondents and the first appellant (Cossam Chiangwa) to court under HC4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018.

By a letter dated 31 July 2018, the second respondent (Aspher Madziyire) called for a Workers Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC4756/18.

On 15 September 2018, the Workers Council met and considered the proposed Constitutional amendments and “accepted” them subject to the suspension of all the provisions, except for the provisions relating to the conduct of elections, in order to give other church members an opportunity to propose further amendments to the amendments.

The resolution was carried by 2,021 votes, inclusive of the appellants votes, against 35, with no abstentions.

The optimum number of councillors supplied by the respondents was 3,475 councilors against 2,056 provided by the appellants.

On 21 September 2018, the Apostolic Council met to consider the dates and rules for the impending triennial elections.

The provincial elections were to be held on 29 September and 3 October 2018, while the national elections would be on 3 November 2018.

The first appellant (Cossam Chiangwa) told the meeting that “he would go his own way because he did not accept the resolution that was passed by the Workers Council on 15 September 2015.”

Whereupon, he served written notice, dated 20 September 2018, and co-signed by all the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba), except the fourth (Shepherd Sebata), on his fellow national office bearers of the meeting of 22 September 2018.

Paragraph 2 of the notice implored the targeted audience to:

“Please note that this is a National Workers Council of all those councilors who strongly feel the adoption of the DRAFT resulted in the formation of a totally different church and is in itself a departure from the church that they have always cherished and loved. It is, therefore, a National Workers Council of those councilors who would like to remain in the AFM in Zimbabwe Church which is governed by the old Constitution which the 15th September National Workers Council attempted to repeal.”…,.

The meeting of 22 September 2018, was purportedly attended by 2,056 councillors, comprised of 1,562 delegates and 567 pastors from 513 assemblies with apologies from 137 assemblies.

The attendees ignored the cease and desist call from the second respondent (Aspher Madziyire).

The meeting, inter alia, reviewed and nullified the resolution of 15 September 2018, and, by a total 1,557 affirmative votes, dismissed the serving national bearers, other than the first appellant (Cossam Chiangwa), arrogated to themselves the power to conduct triennial elections on 6, 13 and 20 October 2018 and incited the members to revolt against the defrocked office bearers.

On 25 September 2018, the Apostolic Council abandoned the saved electoral amendments because they were in complete dissonance with the preserved governance structures of the amended Constitution.

On 26 September 2018, the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba) spurned the cease and desist order and call to return to the mainstream fold issued by the third respondent (Amon Madawo).

They appointed their own 26 provincial overseers and the fourth appellant (Shepherd Sebata) as the National Administrator to whom church funds were to be remitted.

They also urged all church members to ignore the triennial dates set by the Apostolic Council.

On 27 September 2018, the appellants were suspended without pay and benefits and subsequently charged with participating in an illegal meeting and formenting rebellion, disharmony, confusion, destabilization, disorder, and disturbances against the church; forming a splinter group and usurping the powers of the Apostolic Council and the other office bearers in violation of clauses 1.4.2 and 1.4.6 of the Constitution.

They snubbed the charges and notices of hearing, and were dismissed from their official positions on 15 October 2018 with effect from their respective dates of suspension.

They refused to vacate church premises and surrender church assets in their possession or under their control.

They were permanently replaced as office bearers at the national elections held by the respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba, Tawanda Nyambirai, Clever Mupakaidzwa, Briton Tema and Christopher Chembere) on 3 November 2018.

The appellants conducted parallel provincial elections on 3, 6, 7, 13 and 14 October 2018 and Worker's Council elections on 20 October 2018, where the first four appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira and Shepherd Sebata) were elected as President, Deputy President, General Secretary and National Administrator.

It was in their collective capacity, as purported office bearers, that they lodged the second application.

THE ARGUMENTS PRESENTED IN THE COURT A QUO

The First Application

In the first application, the respondents submitted, that, they were the duly elected office bearers of the church, who had legal standing to sue on its behalf for the vindication and protection of its assets through a declaratur and an interdict.

They contended that they had satisfied the requirements for a declaratur prescribed in section 14 of the High Court Act [Chapter 7:06] and the common law requirements for a final interdict and were thus entitled to such relief.

They argued that the meeting of 22 September 2018 was ultra vires the Constitution in that it violated the notice and quorum requirements stipulated in clause 12.7.1 as read with 12.3, clause 13.3.1 of the Regulations and clauses 12.6 and 12.9 and the financial probity arrangements enshrined in clause 12.5 and 12.6 of the Constitution.

They also argued that the vote of no confidence was not only alien to the Constitution but also violated the audi alteram rule.

Lastly, they contended that the appointment, instead of election, of office holders in the church, was anathema to the Constitution.

The appellants took five preliminary points. These were;

(i) That the application was not urgent;

(ii) The respondents did not have locus standi to represent the church as their tenure of office, as national office bearers, had expired on 28 April 2018 and had not been renewed;

(iii) The matter was lis pendens in Mujokeri v Madziyire HC4583/18, in which judgment had been reserved;

(iv) The application was a disguised review of the outcomes of the meeting of 22 September 2018 which could not be sought urgently, on review, or through a declarator; and

(v) Lastly, that there were material disputes of fact, pertaining to the quorum of the meeting of 22 September 2018, which could not be resolved on the papers.

On the merits, the appellants implicitly conceded that their meeting was not convened in terms of the Constitution by ascribing the call to “a big constituency of the church which was clearly not happy with the way the church was going about the Constitutional changes.”

They, however argued, that, this amorphous grouping had the power to dis-appoint just as it had the power to appoint the respondents.

They strongly contended that the resolution of 15 September 2018 was in breach of the mandatory procedural requirements of the two-thirds quorum prescribed in clause 12.6 of the Constitution.

The Second Application

In the second application, the appellants, who baptized themselves as 'the Originals' submitted, that, as the office bearers elected by the church at the triennial elections of 20 October 2018, they had the power to vindicate and protect the assets of the church from the respondents, whom they christened 'the Reform Side' whose tenure of office expired by the effluxion of time on 28 April 2018.

They further submitted, that, the respondents, by violating the amendment clause, clause 12.6 to the Constitution, had, by public acclamation, forfeited their claims to the leadership of the church to the appellants.

The respondents took two preliminary points:

(i) They contended, that, the appellants had no locus standi to represent the church as their election to the national offices was tainted by the illegality of the meeting of 22 September 2018 from which they traced their authority.

(ii) The second was that there were material disputes of fact on the procedure, substance, and effect of the meeting of 22 September 2018 which could not be resolved on the papers.

On the merits, the appellants contended, for the first time in argument, that, the respondents had seceded from the church on 22 September 2018 and therefore did not have locus standi to represent the church.

They argued, that, the respondents sought to overhaul the Constitution and reframe the church in their own image by abandoning the confession of faith and the fundamental doctrines of the church.

THE DETERMINATION OF THE COURT A QUO

The court a quo criticized both parties for raising preliminary points “in such a contentious matter.” It prefaced its decision on the preliminary objections by remarking that:

“Both Madziyire and Chiangwa should have realized that preliminary matters, though permissible in terms of the rules of court, served no purpose in such a contentious matter as the present one.

They should have remained alive to the fact, that, the same required the court to consider the merits of the case as opposed to having the same resolved on the basis of technical issues.

Any technical issue which is not capable of resolving the dispute of the parties is not worth the paper on which it is written. It becomes a time-wasting exercise which does not enhance the work of the court. It should, therefore, be avoided as it constitutes an exercise in futility which is of no benefit to anyone. It does not benefit the party which raises it, let alone the party against which it is raised.

Apart from the issue of lis pendens, which Chiangwa raised, I shall, therefore, deal with all the parties preliminary issues in the body of this judgment. They all relate to the reasons which prompted Madziyire and Chiangwa to file their respective applications.”

In regards to the preliminary objections moved by the appellants in the first application, the court a quo ruled, that, the question of urgency was no longer a live issue; lis pendens could not be sustained as the pending judgment in Mujokeri v Madziyire HC4583/18 had been handed down on 25 March 2019, prior to the hearing before it; there were no material disputes of fact on the quorum of 15 September 2018; and the use of a declarator rather than a review, in the circumstances of the application, was proper, as a nullity could not be reviewed; and, lastly, that, as the respondents were the only office bearers of the church at the time the proceedings were instituted, they had the requisite locus standi to do so.

On the merits, the court a quo, found, that, on a proper application of the operative Constitution of the church, the respondents had established their case on a balance of probabilities and granted them the relief set out in the amended draft order filed on 2 November 2018, as corrected by this Court.

It specifically found, that, they were the office bearers of the church vested with the power to call for, hold, and preside over the Workers Council meetings.

It also held, that, although the triennial anniversary date had passed, on 28 April 2018, clause 13.3.1 of the Constitution as read with clause 13.1.1 of the Regulations, preserved their term of office until the holding of triennial elections in the calendar year in which the triennial year fell; and, in the alternative, that, the common law extended their appointment beyond the triennial anniversary date to the date of the investiture of their elected successors.

It thus found, that, the respondents had proved that the conduct of the appellants, on 22 September 2018, had been motivated by selfish ambition to “illegally snatch power within the church through a coup” and “split the church in their quest for power” and not over any constitutional reform dispute - which reforms they voted in favour of.

It further determined that the meeting of 22 September 2018 suffered from fatal and incurable extrinsic and intrinsic irregularities that were in violation of the Constitution, which rendered the meeting void ab initio.

Lastly, it held that any outcomes that flowed from that meeting were also void and of no force or effect.

On the preliminary issues raised by the respondents in the second application, the court a quo ruled that there were no material disputes of fact which could not be resolved on the averments on quorum on the papers of the appellants in respect of the meeting of 22 September 2018; it upheld the respondents objection on locus standi; it found that the meeting violated the Constitution of the church; further, that, as the Workers Council elections held by the appellants on 20 October 2018 were premised on the meeting of 22 September 2018 they were tainted by these violations; it found both the meeting and the elections invalid and of no force or effect.

On the merits, it held that the appellants bore the onus of establishing, on a balance of probabilities, that the respondents had seceded from the mainstream church and formed a new church by abandoning the church Constitution and adopting the proposed amendments to that Constitution.

It found that the appellants had not placed any evidence capable of discharging the onus.

They had not filed the proposed amendments nor particularized the clauses in the accepted but suspended Constitution that violated the operative Constitution.

Rather, they had produced and relied on the same Constitution as the respondents.

The court dismissed the appellants contention, that, at the time the meeting of 15 September 2018 was held, the respondents tenure of office had expired on two grounds:

(i) The first was that clause 13.3.1 of the Constitution as read with clause 13.3 of the Regulations allowed the office bearers to continue in office beyond the triennial anniversary of their election to any date within the calendar year of such anniversary.

(ii) The second was that the common law abhorred a vacuum and thus allowed office bearers of a universitas to continue in office until elections were held to replace them.

It was on the basis of these findings that the court a quo granted the first application and dismissed the second application with costs.

THE GROUNDS OF APPEAL

The five grounds of appeal raised by the appellants were framed as follows:

“1. The High Court erred in failing to find that the adoption of a new Constitution by the second to eighth respondents and their followers, on 15 September 2018, was unprocedural and not in accordance with the provisions of the Constitution of the fifth appellant.

2. The High Court consequently erred in failing to find that the second to eighth respondents and their followers seceded from the church of the fifth appellant as from 15 September 2018 and therefore had not locus standi to challenge the proceedings of the fifth appellant's church subsequent to that date.

3. The High Court further erred in finding that the appellants had no locus standi to institute the proceedings in case number HC179/19, and, having so found, in going ahead to determine the merits of that application.

4. The High Court further grossly erred in finding that the new Constitution, adopted by the second to eighth respondents, was not a renunciation of the fifth appellant's Constitution when the said Constitution was not placed before the court by the respondents who had the onus to place it before the court.

5. The High Court further erred in finding that the appellants could not seek consequential relief upon the grant of a declarator unless it was combined with an interdict or a claim for a vindicatory relief.”

ISSUES FOR DETERMINATION ON APPEAL

The cumulative import of the first four grounds of appeal was that the court a quo grossly misdirected itself in finding that the respondents, and not the appellants, were the proper office bearers of the church imbued with the requisite legal standing to act on its behalf.

The last ground of appeal interrogates the correctness of the observation of the court a quo that the declarator sought by the appellants was fatally defective for want of vindicatory consequential relief.

The two issues for determination on appeal that arise from all the grounds are:

1. Whether the court a quo was correct in finding that the respondents, and not the appellants, were the recognized office bearers of the church who had locus standi to act on its behalf.

2. Whether the declarator sought by the appellants was not conjoined with consequential relief and therefore fatally defective....,.

Whether the declarator sought by the appellants was not con-joined with consequential relief and therefore fatally defective

It is correct that the court a quo erroneously remarked, at the tail end of its judgment, on page 26, that it was incompetent to seek consequential relief in an application for a declarator that was not conjoined with an “interdict cum vindication.”

In contrast, at page 7 of the judgment, the court stated that:

“They allege that the respondents adopted a new Constitution for themselves, and, in the process, have broken away from the church to form their own church which is separate and different from the Old AFM church. They move me to interdict them from using the name, accessing the assets of the church without their authority.”…,.

The relief sought by the appellants a quo was worded as follows:

“IT IS ORDERED THAT:

1. The application for a declaratory order be and is hereby granted.

2. The 1st to 4th applicants be and are hereby declared to be the duly and properly elected officials of the fifth applicant.

3. The respondents are hereby barred from using the name of the fifth applicant in the conduct of their activities without the authorisation of the applicants.

4. The respondents are hereby barred from accessing or using any assets or property of any kind belonging to the fifth applicant.

5. The respondents and their followers or agents or assignees be and are hereby directed to relinquish to the fifth applicant all and any property belonging to fifth applicant that is in possession or under control of the respondents.

6. Failure of 5 above, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to take all and any property and assets belonging to fifth applicant from the control and possession of the respondents and handover same to the applicants.

7. The respondents shall pay applicant's costs of suit.”…,.

I agree with counsel for the appellants, that, the appellants did seek a declarator con-joined with prohibitory interdicts in paragraphs 3 to 4 and vindication in paragraphs 5 and 6.

The finding of the court a quo, though obiter, was therefore incorrect. It, however, did not constitute the rationale on which it based its judgment.

The ratio decidendi was that the appellants did not have the requisite locus standi to institute HC179/19 because they were not office bearers of the Church.

This how the court a quo expressed itself on the question of locus standi…,:

“The question which begs the answer is: did Chiangwa act in terms of the Constitution and its Regulations when he convened the meetings of 22 September 2018?

The answer to the same is in the negative.

The second question which flows from the first and its answer is: was the meeting of 22 September 2018, which was called in violation of the Constitution, valid?

The answer is in the negative.

The third and final question is: does any act which resulted from the invalid meeting carry any semblance of validity?

The answer is, once again, in the negative.

On the strength of the above mentioned three questions and their respective answers, therefore, it cannot be said that Chiangwa has any locus standi to apply as he did under HC179/19.

His conduct, which emanated from the meeting of 22 September 2018, is a complete nullity. All the activities which he undertook on the basis of that meeting were a nullity.

Madziyire, and not Chiangwa, has locus standi to sue as he did. He has substantial interest in the affairs of the Church. Chiangwa does not have such.”

It must have been apparent to the appellants that the remarks upon which the fifth ground of appeal is founded were obiter. It is improper to note an appeal against such remarks.

This Court pronounced itself on the issue in Muza v Saruchera & Ors SC45-18 thus:

“The appellant erred in noting an appeal against findings that were made by way of orbiter remarks. His error is however understandable in that he is a self-actor who could not discern between the ratio of a judgment and the other findings of the court a quo by way of obiter.”

The impugned remarks were, therefore, inconsequential to the decision made by the court a quo.

The fifth ground, though substantively correct, is devoid of procedural merit and must be struck out....,.

In regards to the second issue, the obiter dictum of the court a quo, that the appellants did not conjoin the main relief that they sought in the second application with the consequential relief of an “interdict cum vindication” was incorrect.

However, as the fifth ground of appeal, which related to this issue, was improperly conceived, it is struck out....,.

1. The fifth ground of appeal be and is hereby struck out.

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

For an appeal to enjoy any prospects of success it must attack the findings of the court a quo on the issues before it for determination.Grounds of appeal that do not address or attack the findings upon which the determination was made would have no prospects of success at all.

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

This Court cannot, on appeal, make a decision on an issue the court a quo did not consider as it was not raised before it.

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

The appeal was brought on nine grounds. However, a number of the grounds were struck out for not being concise as required by the Rules of this court, for containing argument or for making no sense at all.It hardly needs re-emphasizing, that, grounds of appeal must conform to laid down ...

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.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.There were no appearances for the second and third respondents.FACTUAL ...

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

FACTUAL BACKGROUND

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1....,.

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved....,.

At the hearing of the appeal, the first respondent raised a preliminary point challenging the validity of the appellant's second ground of appeal.

It asserted, that, the ground of appeal did not raise a question of law. Rather, it attacked the factual finding of the court to the effect that the appellant had tendered no evidence to support his assertion that the first respondent's Board had approved most of the actions that formed the basis of the misconduct charges levelled against him.

Per contra, the appellant contended, that, the impugned ground of appeal raised a procedural issue that attributed the acts of the employee to the employer itself, that is, the first respondent.

Counsel for the appellant referred to Zvokusekwa v Bikita Rural District Council SC44-15, which held, that, it was not the formulation but the substance of a ground of appeal that matters.

After hearing argument from both counsel, the court found merit in the submissions of the first respondent and upheld its point in limine.

The court noted, that, the court a quo clearly found, as a matter of fact, that, the appellant had not tendered any evidence to substantiate the assertion that the first respondent's Board had indeed approved the actions that were then converted into misconduct charges against him.

As a factual finding, the appellant could only have successfully impugned it upon proof that the finding was so grossly unreasonable that no other court, properly applying its mind to the issue, could have reached the same conclusion: see Barros v Chimphonda 1999 (1) ZLR (S) 58…,.

The appellant, not having proved any such misdirection on the part of the court a quo, the court accordingly struck out the appellant's second ground of appeal.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

FACTUAL BACKGROUND

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved.

3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.

The appellant's fourth ground of appeal in casu addresses an issue that was included in his alternative set of review grounds a quo.

It is evident, from the record, that, the court a quo, having determined the review application only on the basis of the main review grounds advanced by the appellant, did not address the appellant's alternative set of review grounds, which included the issue raised in the appellant's fourth ground of appeal.

To the extent that an Appeal Court's mandate is to test the correctness or otherwise of a lower court's decision and the reasoning behind it, the appellant's fourth ground of appeal is misplaced. This is because the ground calls upon this Court to determine, in the first instance, an issue that the court a quo did not consider.

The ground of appeal is therefore invalid and is accordingly struck out.

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

It is settled law in our jurisdiction that an Appeal Court will not easily interfere with factual findings made by a lower court. To that extent, case law has set the test for discrediting and upsetting factual findings by a lower court so high that they cannot easily be overturned ...

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

This is an opposed application for rescission of judgment which has its genesis in the dismissal of the applicant, Patricia Mapini, from employment by the respondent, Omni Africa.

The applicant was engaged as a Sage Pastel Sales Executive by the respondent.

The working relationship soured when the respondent terminated the applicant's contract of employment on the basis of certain allegations it made against her.

Aggrieved by what she considered to be unfair dismissal, the applicant sought resolution of the matter through compulsory arbitration.

She obtained a default judgment for the sum of US$36,064 on 29 June 2012.

The present application, for rescission, has its foundations in this initial default judgment obtained by the applicant.

Since two different sets of default judgements, one at the instance of the present applicant, and the other at the instance of the respondent, inflame this dispute, it is important to capture the details of both.

Furthermore, in resolving disputes, the devil is often in the factual details ultimately examined against whatever the law provides.

The first default judgement, that resulted in the granting of the arbitral award, was spawned by two postponements of the arbitrator's hearing.

Initially set for hearing on 9 February, the matter could not take place as the arbitrator was away on that day. Further postponed to 15 February, it again still failed to take off on that day: this time, the respondent's lawyer, Mr Mazhande, was unable to attend due to the need to attend a funeral. He, however, requested a representative from another law firm to inform the arbitrator. The evidence on file suggests that this was duly done.

The papers filed of record further reveal, that, the arbitrator, after receiving word from the emissary, dutifully postponed the matter to 21 February. This was by written notice to both the applicant and the respondent.

The information in the papers placed before the court, in addition, confirms that the respondent's receptionist signed and received the notification of this new date, on 16 February.

Nonetheless, on the re-appointed day, February 21, the respondent did not show up which resulted in the granting of a default judgement by the arbitrator in favour of the applicant.

This judgement was subsequently finalised on 29 June.

The evidence, placed before the Honourable Court, also shows, that, in carrying out the necessary processes for the finalisation of the award, the respondent was accordingly notified at every stage. The applicant proceeded to register the arbitration award on 6 July 2012. The registration was granted on 4 December 2012.

It is against this order that the High Court issued a writ of execution on 29 January 2013.

This has also spawned yet a pending matter of stay of execution.

Parallel to the above processes, the respondent, who had not been present at the hearing on 21 February, filed an application, on 1 October 2012, in terms of Article 34 of the Arbitration Act [Chapter 7:15] seeking the setting aside of the arbitral award which was granted on 29 June 2012.

The respondent's primary argument was that the award made by the arbitrator, in its absence, violated the dictates of natural justice in that it had not been granted a hearing.

The respondent succeeded in setting aside the arbitral award.

This was not on the basis of consideration of any merits, but, as a result of a default judgement granted in an unopposed matter.

It appears that the applicant did respond to the application on the 18th of October (also confirmed by stamped documents in file HC/11439/12) attaching documents challenging the respondent's averment of lack of notification.

However, she sent her documents to the respondent's previous lawyers, Muchandibaya and Associates.

These lawyers had indeed, at some stage, as evidenced by correspondence, represented the respondent in the matter.

There is some dispute as to when exactly they assumed agency. No record was on file regarding this aspect.

They were, however, no longer acting for the respondent at the time of the application for rescission as the application was issued by Mawere and Sibanda Legal Practitioners.

A default judgment was granted on 21 November 2012.

It is this default judgement that the applicant seeks to rescind.

The applicant states, that, she only got to know of the default judgement on 15 July 2013. This was after she was served with an urgent chamber application for stay of execution. She filed her application for rescission on 23 July 2013.

She avers, in support of her application for rescission, that, she was unaware, at the time, that, the respondent had since changed practitioners.

She also disputes, that, the respondent was not aware of the arbitration award until its registration on the basis, that, the evidence from process shows, that, the respondent was informed at all times and generally chose to ignore correspondence.

The applicant also challenges the setting aside of the arbitral award on the grounds that the High Court lacked the necessary jurisdiction to hear this matter.

She maintains, that, the setting aside of an arbitral award is the exclusive jurisdiction of the Labour Court in terms of the Labour Act [Chapter 28:01].

Reference was made to several judgements which I will canvass more fully later in this judgement in addressing this issue.

The respondent opposes the application for rescission on the basis that none of the acceptable grounds for rescission are met by the applicant.

These include:
(i) A reasonable explanation for the default;
(ii) The bona fides of the application to rescind; and
(iii) The bona fides of the defence to the claim, which must have some prospect of success at the trial.

Cases referred to include Stockhill v Griffiths 1992 (1) ZLR 172 (S); Rolland and Anor v Donell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 201 (S); and Barclays Bank of Zimbabwe v CC International (Pvt) Ltd SC16-86.

Counsel for the respondent also argued, that, the applicant has to bear responsibility for not being vigilant: see Ndebele v Ncube 1992 (1) ZLR 288 (S).

The applicant's reasons for her default HC/11439/12 are credible.

Order 2 Rule 5(2) of the High Court Rules requires a party who has changed legal practitioners to file a Notice of Change with the Registrar and to advise all other parties to the proceedings of the change.

It is unreasonable, and most certainly irregular, to simply expect that the applicant should have picked the change of address from the fact that the application came from Mawere and Sibanda Legal Practitioners.

There is nothing on record that shows that the applicant was advised of the sea of changes in practitioners representing the respondent at various turns - these include the take over from Mr Mazhande who is said to have been unable to attend the hearing on 15 February by Muchandibaya and Associates who subsequently came into the picture sometime thereafter.

Then, there is the notification of the takeover by Mawere and Sibanda from Muchandibaya and Associates, the respondent's current practitioners, that is also not on file.

In the result, the applicant assumed, albeit, erroneously, that, Muchandibaya and Associates were still handling the matter.

Her opposition did not find its way to Mawere and Sibanda and the matter was heard as unopposed.

Once she got knowledge of the judgement, she acted swiftly to seek its rescission.

I find that the default was not wilful and that the applicant is bona fide in her application to rescind.

On the bona fides of the applicant's defence to the claim, and whether it has some prospects of success if the matter is rescinded, again, I find that the weight of the evidence appears to favour her claim.

The basis of the respondent's application against which rescission is sought, was that it had not been accorded a right to be heard.

As I have earlier remarked, this is not supported by the papers placed before the court since the arbitrator put the postponement in writing. The notice was received and signed for at the respondent's offices.

The applicant, in my view, has some prospects of success in challenging the respondent's claim.

I proceeded, in my analysis of this application, on the basis, that, the matter against which rescission is sought was properly brought before the High Court by the respondent.

The applicant, in her heads of argument, also argued, that, the primary matter had been improperly brought before this court.

The crux of her averment is that the proper forum for an application to set aside an arbitration award is the Labour Court.

Indeed, various decisions of this court have canvassed the increased jurisdictional issues as well as the specialist nature and positioning of the Labour Court in labour matters in relation to the High Court. This followed, in particular, amendments to the Labour Act such as No.17 of 2002 and Amendment No.7 of 2005: see Tuso v City of Harare 2004 (1) ZLR 1 (H); Zimtrade v Makaya 2005 (1) ZLR 427; Delta Corporation t/a Delta Beverages v Lovett Mabhumbo HB34-07; Dlodlo v Deputy Sherriff of Marondera & Ors HH76-11; Benson Samudzimu v Dairiboard Holdings HH204-10.

Where specific statutes apportion responsibility and authority for hearing certain matters, it is indeed vital, for the swift administration of justice, that the jurisdiction accorded any specific courts be recognised, respected, and enforced.

Clarity on the part of the legislature, in according such jurisdiction, is equally important as its absence can result in overlapping jurisdiction.

A key issue in this regard is whether the jurisdiction of the High Court, pertaining to setting aside arbitration awards in labour matters, is now indisputably the strict preserve of the Labour Court or whether the High Court maintains its jurisdiction.

This issue arises in light of the wording of the applicable provision that deals with this issue.

The relevant provisions of Article 34 of the Unicitral Model Law, Arbitration Act [Chapter 7:15] upon which the respondent brought the matter to the High Court reads as follows:

“Application for setting aside as exclusive recourse against arbitral award

(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…,;

(i)…,.

(ii) The party making the application was not given proper notice of the appointment of the arbitrator or the arbitral proceedings or was otherwise unable to present his case; or

(iii)…,.

…,.

…,.

…,.

(4) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared, that, an award is in conflict with the public policy of Zimbabwe if –

(a)…,.

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

Section 5(2) of the Arbitration Act [Chapter 7:15], which addresses the application of the Arbitration Act under other enactments is also vital. It is couched as follows:

(2) Where an enactment provides for the determination of any matter by arbitration, the provisions of that enactment, to the extent that they are inconsistent with this Act, shall prevail.”

The provisions of Article 34 of the Unicitral Model Law, Arbitration Act have found specific commentary in case law.

For instance, CHIWESHE JP, in the case of Benson Samudzimu v Dairiboard Holdings HH204-10 remarked as follows with specific reference to Article 34 and 36 of the Arbitration Act:

“I agree with the applicant, that, the correct interpretation would be, that, with regards the law, the Labour Act takes precedence over the Arbitration Act or any other enactment.

The intention of the legislature was to have all labour matters initiated and resolved to finality in terms of the Labour Act.

Equally, the legislature must have intended that such matters be dealt with by the Labour Court to the exclusion of any other court.

Sections 34 and 36 of the Arbitration Act are not applicable in cases where the award sought to be challenged is a labour dispute. The mechanisms for challenging awards are provided for in the Labour Act and may be accessed through the medium of the Labour Court. No other court has jurisdiction to entertain such matters.”

This approach towards interpreting the enhanced powers of the Labour Court, occasioned by legislative intervention, helps to streamline and direct labour matters towards this court.

However, Article 34 of the Arbitration Act still specifically mentions the High Court in no uncertain terms as the forum for applying for the setting aside of an arbitral award.

The purported ouster of the High Court's jurisdiction, in labour matters, while the provision remains couched as it is, is doubtful.

In my view, there is no inconsistency between the jurisdictional provisions of the Labour Act, on issues relating to arbitration, and the provisions of Article 34 of the Arbitration Act that would justify the invocation of section 5 of the Arbitration Act.

I say this because the issues envisaged in Article 34 of the Arbitration Act, for setting aside an award, are not dealt with elsewhere in the Labour Act.

Indeed, it is for this reason, that, MUNYARADZI GWISAI, a labour scholar, attempts to argue at p234 of his book on Labour Law in Zimbabwe that appeals on questions of law, as stipulated in section 98(10) of the Labour Act, encompass the kind of issues envisaged by Article 34 of the Arbitration Act: see Munyaradzi Gwisai, Labour and Employment Law in Zimbabwe: Relations of Work under Neo Colonial Capitalism (Harare: Zimbabwe Labour Centre and Institute of Commercial Law, UZ 2006).

To quote him:

“Where the making of an award is in violation of grounds specified under Article 34 of the Model Law, discussed above, such violation qualifies the appeal as being on a question of law.”

The essence of his interpretation is that it is to the Labour Court, under appeals on question of law, that any matter relating to the award under Article 34 should be brought.

In my view, such an interpretation, while clearly recognising the specialist role of the Labour Court, is nonetheless a contortionist way of locating jurisdiction within the Labour Court for setting aside arbitral awards.

Given its specific wording, and in the absence of a specific ouster through an amendment clarifying the non-application of Article 34 of the Abitration Act to labour matters, the jurisdiction of the High Court, in such issues, cannot be said to have been ousted.

There is nothing that stops the legislature from effecting the desired clarity in the interests of the smooth administration of justice in labour matters if indeed its intention was, and is, to exclude these from the ambit of the provision of Article 34 of the Arbitration Act in favour of the Labour Court: see De Wet v Deetlefs 1928 AD 286…, where SOLOMON CJ remarked as follows:

“It is well a recognised rule in the interpretation of statutes, that, in order to oust the jurisdiction of a court of law, it must be clear that such was the intention of the legislature.”

Pending such clarity to the application of Article 34 of the Arbitration Act, in labour matters, litigants, such as the respondent, who have sought audience in the High Court to set aside an arbitral award cannot be said to be accidental, unwelcome visitors.

In the result, I therefore make the following order:

1. The judgement of this Honourable Court under case No. HC11439/12 be and is hereby rescinded.

2. There is no order as to costs.

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Law Portal Zimbabwe

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Labour Proceedings

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS 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

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

SC30-14 : RICHARD CHAYIKOSA vs THE CITY OF HARARE Ruled By: MALABA DCJ

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS Ruled By: ZIYAMBI JA

SC69-14 : CHARLES KAKURIRA vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: MALABA DCJ

SC16-15 : ELINETH DICK vs ZIMBABWE REVENUE AUTHORITY Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

SC28-15 : ZINWA vs JOSEPH MWOYOUNOTSVA Ruled By: ZIYAMBI JA, GWAUNZA JA and HLATSHWAYO JA

SC60-15 : SIMON GAZI vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC23-12 : MIMOSA MINING COMPANY vs STANLEY SAMUKANGE Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC22-13 : FARM COMMUNITY TRUST vs CLAUDIOUS CHEMHERE Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

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

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

SC64-14 : CENTRAL AFRICAN BATTERIES vs JOHN MHANGU Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

SC05-15 : INNSCOR AFRICA (PRIVATE) LIMITED vs TERRENCE GWATIDZO Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC18-15 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs B. SHONHIWA and F. GARATSA and P. ZARANYIKA Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC09-16 : PETER MAFUNDA vs ZIMBABWE ENERGY REGULATORY AUTHORITY Ruled By: HLATSHWAYO JA, MAVANGIRA JA and UCHENA JA

SC22-17 : EDWARD MISIHAIRAMBWI and 14 OTHERS vs AFRICARE ZIMBABWE Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

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

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

SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

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

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

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

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

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

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

SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

View Appeal SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD Ruled By: GARWE JA, GOWORA JA and UCHENA 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

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD Ruled By: TSANGA J

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Zimbabwe

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC27-09 : CLAUDIUS MURAWO vs GRAIN MARKETING BOARD
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
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

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

SC30-14 : RICHARD CHAYIKOSA vs THE CITY OF HARARE
Ruled By: MALABA DCJ

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS
Ruled By: ZIYAMBI JA

SC69-14 : CHARLES KAKURIRA vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MALABA DCJ

SC16-15 : ELINETH DICK vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

SC28-15 : ZINWA vs JOSEPH MWOYOUNOTSVA
Ruled By: ZIYAMBI JA, GWAUNZA JA and HLATSHWAYO JA

SC60-15 : SIMON GAZI vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: ZIYAMBI JA, GWAUNZA JA and MAVANGIRA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC23-12 : MIMOSA MINING COMPANY vs STANLEY SAMUKANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC21-13 : AUGUSTINE M. TIRIVANGANA vs THE UNIVERSITY OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC22-13 : FARM COMMUNITY TRUST vs CLAUDIOUS CHEMHERE
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

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

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

SC64-14 : CENTRAL AFRICAN BATTERIES vs JOHN MHANGU
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

SC05-15 : INNSCOR AFRICA (PRIVATE) LIMITED vs TERRENCE GWATIDZO
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC18-15 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs B. SHONHIWA and F. GARATSA and P. ZARANYIKA
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC44-15 : JAINOS ZVOKUSEKWA vs BIKITA RURAL DISTRICT COUNCIL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC09-16 : PETER MAFUNDA vs ZIMBABWE ENERGY REGULATORY AUTHORITY
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and UCHENA JA

SC22-17 : EDWARD MISIHAIRAMBWI and 14 OTHERS vs AFRICARE ZIMBABWE
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC36-16 : TN HARLEQUIN LUXAIRE vs WINSTON MHONDA and FUNGAI KATSVAIRO
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

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

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

SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

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

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

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

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

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

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

SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA 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

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J