Abel Machanyangwa v Zimbabwe United Passengers Company Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/695/16
HELD AT HARARE 25 OCTOBER 2016
CASE
NO
JUDGMENT NO LC/H/695/16
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/695/16

HELD AT HARARE 25 OCTOBER 2016			CASE NO LC/H/288/16

& 4 NOVEMBER 2016

In the matter between:

ABEL MACHANYANGWA						Appellant

And

ZIMBABWE UNITED PASSENGERS COMPANY LTD		Respondent

Before The Honourable Chivizhe, J

Appellant			In person

For Respondent		S V Hwacha (Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an appeal against an arbitral award handed down in May 2012.  The appeal was filed in May 2016.

On the date of hearing the Respondent took two points in limine.  Firstly that the matter was improperly placed before the court as an appeal.  The “Appellant” having filed the appeal four years after the granting of the award he ought to have properly filed an application for condonation.  The second point taken was that in any event the purported grounds of appeal were raising procedural issues which ought to be more appropriately raised in an application for review rather than an appeal.  On that basis the grounds were improperly before the court and ought to be struck out. The points in limine were opposed by the Appellant.

Mr S. Hwacha, for the Respondent submitted that both points in limine being with merit ought to be granted by the court.  On the first point it was clear based on the evidence in the record that the Appellant’s submission that he only became aware of the award in May 2016 was improbable. Reference was made to page 32 of the record where there is a handwritten letter to the Respondent, Chief Executive Officer by the Appellant dated 4th March 2016.  In the letter the Appellant clearly acknowledged knowledge of the existence of the award.  Mr Hwacha further submitted that in view of the factual dispute between the parties as to when the Appellant received the award there was need for Appellant to file an application for condonation in order to enable the matter to be properly ventilated.

Mr Machanyangwa, in person, submitted that the appeal was properly placed before the court.  He had properly filed his appeal in accordance with the Rules of the Court.  The reason why the appeal was filed four years later was that the award had only been made available to him in May 2016.  He had been made aware of the award by the Arbitrator Mudzengi in 2012 soon after the award came out.  He had however failed to collect the award from the Arbitrator as the Arbitrator was difficult to locate.  Several attempts to meet with him had failed.  He had then written a letter dated 4th March 2016 to the Chief Executive Officer of ZUPCO ( copy attached) looking for a copy  of the said award.  In his response the Chief Executive Officer displayed ignorance as to the existence of any award by Arbitrator Mudzengi.  Mr Muchanyangwa further submitted that it was only when he approached the Labour  Offices and with the assistance of the Provincial Administrative Officer the matter having been again been set down for 26th of May, 2016 that he had then been furnished with a copy of the award by Respondent’s lawyers.  It was his submission  on that basis the appeal was properly before the court having been filed within the time limits laid down in the Rules.

In response to the second issue Mr Machanyangwa submitted firstly that he did not comprehend the submissions being made at the point.  Upon elaboration by Mr Hwacha as to the difference between the two processes of an appeal and an application for review Mr Machanyangwa submitted that the grounds as raised were properly before the court.

Lastly, Mr Muchanyangwa, submitted that in view of the Registrar of Labour’s position taken through his letter dated 24th June 2016  to Mr S. Hwacha  that the appeal had been properly filed in terms  of the rules the issue was settled and the court should proceed to hear the appeal on the merits.

Rule 15(1) of the Labour Court Rules provides as follows:

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

It is clear on the basis of the above provisions that the period of 21 days is calculated from the date when the Appellant receives the decision, determination or direction or award.

There is clearly a factual dispute between the parties as to when the Appellant is supposed to have received the award.  The Appellant’s position is he received the award in May 2016 at the Labour Offices from Mr Hwacha where both parties had been notified to appear.  Mr Hwacha’s contention however is that the Appellant must have received the award four years ago when he was informed by the Arbitrator that the award was ready for collection.  Whilst Respondent cannot point to a specific date of receipt the Respondent’s position is Appellant could not have failed for four years to collect the award.  The explanation tendered by the Appellant was not convincing.

The court is persuaded by Respondent.  It is clear on the basis of the evidence in the record that the Appellant did become aware of the issuance of the award in 2012.  The Appellant himself admitted in his handwritten letter to the CEO of ZUPCO (page 32 of the record) that he was advised by the Arbitrator that the award had been issued.  He wrote as follows:

“Personally I was informed over the phone that the award was handed down. Honorable D. Mudzengi phoned after above three months or so to relay the message that the award was ready.”

It is clear that the Appellant actually knew of the existence of an award three months after the award was issued.  The Appellant ought to have received the award during that period.  He however would argue that he failed on several occasions to meet with the Arbitrator in order to receive the award.  He also suggests that during relevant period he also visited ZUPCO offices and Messrs Dube, Manikai and Hwacha for purposes of obtaining a copy of the award but with no success.  The Appellant’s explanation is clearly not convincing. It is unbelievable to imagine that after phoning him to advise of the award that Arbitrator would have started to play hide and seek with the Appellant for what purpose?  Even if he had failed to locate the Arbitrator the Appellant would have approached ZUPCO or Messrs Dube, Manikai & Hwacha at least to obtain a copy of the award.  The facts clearly point to a litigant who received the award and was not keen to pursue the matter any further because the award was not in his favour.  Upon realisation that Arbitrator Mudzengi was now late Appellant now wants to take advantage of the fact by claiming that he never received the award.  The explanation tendered by the Appellant is therefore clearly not plausible.  The court rejects it totally.  It is therefore the court’s findings that the Appellant having received the award at some point in 2012 the Appellant ought to have filed his appeal then.  The purported appeal placed before the court is clearly filed out of time and ought to have been accompanied by an application for condonation.

The Appellant has also sought to rely on the letter by the Registrar of the Labour Court.  The Registrar of the court is an official of the court.  Whilst he may have made comments in his response to a query to suggest that the appeal is properly before the court those comments do not bind this court.  It is clear that Registrar in reaching his conclusion had no basis for concluding that the award was received on the 26th May 2016 other than by reference to the bald assertions by the Appellant.  Considering that the Appellant’s assertions were hotly disputed by the Respondent it was not in the Registrar’s place to  determine the dispute between the parties. The issue could only be determined by the court as I have done.

Having come to the above conclusions it follows that the purported appeal having been filed out of time and in the absence of an accompanying application for condonation the appeal is improperly placed before the court.  There is consequently no appeal before the court.  The matter ought to be struck off the roll.

There is another issue which for completeness I ought to address.  It is also very clear that the purported grounds of appeal to the extent that they raise procedural issues (i.e. ground one and two) and are underpinned on factual findings by the Arbitrator (i.e. ground three) the grounds of appeal are incompetent grounds,  Section 98 (10) of the Labour Act [Cap 28: 01] clearly provides that an appeal against an arbitral award has to be on a point of law.  So assuming that the court is wrong in regards the first point and appeal is properly placed before me the appeal would still suffer a still birth on the basis of the incompetent grounds of appeal.

In the result the following order is made:

The appeal, being improperly placed before the court it be and is hereby struck off.

In the alternative the grounds of appeal raised, being improperly raised before this court, are hereby struck out.

There is no order as to costs.

Dube, Hwacha & Manikai, respondent’s legal practitioners