Belvedere Nursing Home (Pvt) Ltd v Dr. Partson Zvandasara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/386/2014
HARARE, 14 MAY 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/386/2014

HARARE, 14 MAY 2014			                     CASE NO. LC/H/750/13

AND 04 JULY 2014

In the matter between:-

BELVEDERE NURSING HOME	(PVT) LTD		-		Applicant

And

DR. PARTSON ZVANDASARA				-		Respondent

Before Honourable L.M. Murasi, Judge

For Applicant		-	Mr. A. Demo (Legal Practitioner)

For Respondent		-	Mr. E.R. Samukange (Legal Practitioner)

MURASI J:

On 28 February 2014 this Court dismissed Applicant’s application for interim relief filed in terms of section 92E (3) of the Labour Act [Chapter 28:01].  Applicant seeks to approach the Supreme Court.  This is therefore an application in terms of section 92 (F) (1) of the Act.  The basis of the appeal is that the Court erred in finding:

that the appeal does not raise legal issues/points of law.

that the arbitrator’ s findings would be unassailable on appeal; and

that the applicant will not suffer irreparable harm if the award is executed.

Applicant largely abided by the Heads of Argument filed of record.  It was submitted that the Court erred in failing to appreciate that the dispute had prescribed and the determination was a legal issue.  It was also stated that resignation was a unilateral act and the question as to whether resignation requires acceptance by the other party was clearly a legal issue.  Applicant further averred that the Court erred in not finding that the arbitrator had made a gross misdirection on the facts.  Further, Applicant submitted that execution of the award would prejudice it and render the appeal academic.  Further, it was stated on behalf of Applicant that the Court had directed the Applicant to file a copy of the summons which had been issued by the High Court but “shockingly the issue was not taken into consideration at all hence this was a serious error of law.”

Respondent, apart from abiding by the Heads of Argument, submitted that the matter was interlocutory in nature and should not be before the Court.  Respondent further submitted that Applicant’s appeal was based on factual findings by the arbitrator and does not raise any points of law.  Respondent further stated that the Court had to deal with the merits of the appeal in order to determine whether there were any prospects of success.  As to the issue of summons supposedly requested by the Court to be furnished, Respondent stated that the summons were not part of Applicant’s case and cannot be the basis of Applicant’s ground of appeal to the Supreme Court.

It is trite that the approach to adopt when considering an application for leave to appeal is that it should not be based on whether an appeal is arguable or not, but on its prospects of success.  Put differently, the test to be applied when considering an application for leave to appeal is whether the applicant has reasonable prospects of success on appeal.  The Court should however guard against passing a vote of confidence in its judgment.  The issue is whether there is reasonable prospect of the Supreme Court arriving at a different judgment on the same facts.  The Supreme Court will only interfer where the Court has committed an irregularity or misdirection or where the manner it exercised its direction was so unreasonable as to vitiate the decision made.  The Court will apply these principles to the facts of this case.

The Court will first examine the issue of whether this is an interlocutory judgment and whether it is subject to appeal.  HEBSTEIN AND VAN WINSEN in The Civil Practice of the Supreme Court of South Africa, 4th Edition had this to say at page 878:

“The principle to be applied in determining whether a preparatory or procedural order is purely interlocutory is laid down in the leading case of PRETORIA GARRISON INSTITUTES vs DANISH VARIETY PRODUCTS (PVT) LTD SC that a preparatory or procedural order is purely interlocutory unless it is such as to “dispose of any issue or any portion of the issue in the main action or suit or unless if irreparably anticipates or precludes some of the relief which would or might be given at the hearing”.

The authors go on to quote CORBETT JA in SOUTH CAPE CORPORATION (PTY) LTD vs ENGINEERING MANAGEMENT SERVICES (PTY) LTD where he stated thus:

“(a) In a wide and general sense the term ‘interlocutory’ refers to all orders pronounced by the Court upon matters incidental to the main dispute, preparatory to, or during the progress of the litigation.  But orders of this kind are divided into two classes: (i) those which have a final and definitive effect on the main action; and (ii) those known as simple (or purely) ‘interlocutory orders’ or ‘interlocutory order proper’, which do not”

HOWIE P had occasion to deliberate on the same issue in PHILLIPS AND OTHERS vs NATIONAL DIRECTOR OR PUBLIC PROSECUTIONS 2003 (2) SACR 410 (SCA) where he stated that for a judicial decision to be appealable it had to be a judgment or order and that generally a judgment or order was:

final in effect meaning unalterable by the Court whose judgment or order it  was;

definitive of the rights of the parties; and

dispositive of at least a substantial portion of the relief claimed in the main proceedings.

Further, the Learned Judge opined that an appeal was aimed only at a decision that was final and definitive and not at what was “a moving target.”  The Learned Judge went further to state at paragraph 19 that:

“Clearly, if the decision in issue has none of these attributes it is difficult to see how it could be susceptible to appeal.”

The Court will proceed to consider the above attributes seriatim.  Is the judgment final in that it is unalterable by the Court whose judgment it is?  Whilst the Court is unable to alter the decision except in compliance with the provisions of section 92C of the Act, one has to have regard to the provisions of sect 92E (3).  The statute refers to “interim determination.”  The provision in itself does not involve any use of statutory interpretation as it has a clear meaning.  Secondly, was the judgment definitive of the rights of the parties?  This must be answered in the negative.  The application was for “interim relief” pending the determination of the main appeal.  The main appeal is still to be set down and heard.  The appeal will then give a definitive position of the rights of the parties.  Mr. Demo, for the Applicant, seemed to harp on the fact that as the Court had determined the issue of prospects of success, then it was definitive.  With due respect, the Court of necessity had to delve into prospects of success in order to assess whether Applicant was entitled  to the relief prayed for.  The last point to consider is whether the order was dispositive of at least a substantial portion of the relief claimed in the main proceedings?  This also must be answered in the negative.  The Court’ s decision was a refusal to grant the relief, that is, a stay of execution of the arbitral award.  This means that the Respondent was in a position to apply for the execution of the award.  It also was implied that Applicant was in a position to defend the execution of that award.

The Court is of the view that the decision it made was not definitive of the rights of the parties.  I therefore agree with the submissions of the Respondent that the judgment is of an interlocutory nature and thus not appealable.  The application should fail on that score.

The Court will go on to deal with the other issues raised in the application.  Applicant raises the issue of the finding by the arbitrator on prescription.  Applicant avers that it was a legal issue to be considered by the arbitrator.  I do not agree that the determination of whether a matter had prescribed or not was a legal issue.  It was purely a factual matter.  This also applies to the determination whether Respondent tendered a verbal resignation or not.  This was a factual issue.  As observed by GARWE JA in SABLE CHEMICAL INDUSTRIES LTD vs DAVID PETER EASTER BROOK SC 18/10 at page 10 of the cyclostyled judgment:

“For example in a criminal case whether the facts as proved establish theft or robbery is a question of fact and not law.”

This equally applies to the submissions by the Applicant on the above points.  The determination of whether the matter was prescribed was a finding of fact and not law.  The determination of whether or not Respondent had tendered a verbal resignation was clearly a factual finding.  No matter how well these positions may be put, they remain factual findings and will not mutate into points of law.  There are therefore indeed no prospects of success on appeal.  The Court is of the view that the Supreme Court will not find these to be points of law.  Therefore the Court opines that there was no misdirection in holding that these were factual issues and not points of law as required in terms of section 98 (10) of the Act.

The Court wishes to make certain observations, on the application.  On page 11 of the Heads of Argument.  Applicant states:

“With respect, the Honourable Judge failed to understand the nature of the arbitral award.  He conflicted himself by finding that:-

‘… the arbitral award in its present form is not executable.’”

I believe legal practitioners as officers of the court should be in a position to be forthright and candid when dealing with matters before court.  The record does not show that this was a finding of the Court.  The record actually shows the following:

“On the issue of Applicant suffering irreparable harm the Court is of the view that the point raised by Respondent is worth nothing.  Respondent submitted that  the arbitral award in its present form is not executable and the Applicant should prove that its case cannot wait.”

The finding of the Court was that Applicant “ has not been able to satisfactorily state that this was in fact the case.”  Therefore what Applicant has attributed to the Court as being its finding which it alleges is inconsistent with a later finding, is incorrect.

One further issue which arises from Applicant’s Heads of Argument state as follows:

“At the hearing held on the 7 February 2014, the Honourable Judge directed the applicant to file a copy of the summons, but shockingly that issue was not taken into account at all – hence this was a serious error of law.”

Again, Counsel for Applicant had to be told during the hearing that he was not being candid with the Court.  Counsel for Applicant had to be reminded that the Court did not “direct” that the summons be filed.  What had transpired was that in his response Applicant’s Counsel had made reference to the summons which Respondent’s Counsel denied knowledge of.  The Court then asked whether Applicant’s Counsel could avail a copy to Respondent’s Counsel and the Court.  As submitted by Respondent’s Counsel, this was not part of Applicant’s case and how it now forms part of the ground of appeal is baffling to say the least.

Having said that, the Court finds firstly, that the judgment of the Court sought to be appealed against was not definitive of the rights of the parties and thus interlocutory and not appealable.  Secondly, the Court is of the considered view, that the Supreme Court will not interfere with this decision and thus there are no prospects of success on appeal.

In the result the Court finds that the application is devoid of merit and is accordingly dismissed.

Costs shall be in the cause.

CHIHAMBAKWE, MTIZWA & PARTNERS, Applicant’s legal practitioners.

VENTURAS & SAMKANGE, Respondent’s legal practitioners