Busani Mandhlokuwa v Cheetah Express Logistics (Private) Limited t/a FedEx Express

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/205/2021
HARARE, 19 OCTOBER 2021 &
CASE NO LC/H/208/21
5 NOVEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/205/2021

HARARE, 19 OCTOBER 2021 &		               CASE NO LC/H/208/21

5 NOVEMBER 2021

In the matter between:-

BUSANI MANDHLOKUWA			APPLICANT

AND

CHEETAH EXPRESS LOGISTICS		RESPONDENT

(PVT)  LTD  t/a FEDEX EXPRESS

Before the Honourable Kudya J

For the Applicant		E.E. Matika (Legal Practitioner)

For the Respondent		P. Dube  (Legal Practitioner)

KUDYA, J:

This judgement only addressed the 2 points in limine which were taken by the respondent employer in an appeal at the instance of the appellant employee.  This follows a labour dispute pitting the 2 and which saw them appearing before the National Hearing Committee whose decision is now meant to be decided on appeal in the labour court.

The 2 points taken are that invalid grounds of appeal have been raised and that the relief sought is not clear.  In the result the employer prays that the appeal be struck off the roll with costs on account of it being bad at law for reasons already advanced.  Each of the points is discussed below.

Invalid appeal grounds

It is settled law that appeal grounds have to be clear and concise See Sambaza v Al Stams Global BVI Ltd SC-3-18. In the case at hand the employer says the employee’s appeal grounds are not clear in particular appeal grounds a and e.  Ground a speaks to the fact that the national hearing committee concluded the matter without direct evidence and corroboration. Ground b that the evidence of airway bills could have been generated by someone other than the accused employee.  Ground c states that committee relied on contradicting evidence of the witnesses who testified in the matter.  Ground d was to the effect that the hearing committee erred to rely on evidence of one Tewende who had a motive to incriminate the employee as he was not charged yet he had also misconducted self but remained in employment so was keen to keep relations with the employer.  Ground  e  spoke to the Hearing committee’s failure to find that there was a relationship between the money received from  Tsaura T. a client and the amount shared  between the employee and Tewende yet that money formed the basis of the allegations. Finally the hearing committee was accused of upholding the admissibly of a letter incriminating the employee yet same was challenged by the legal practitioner on the hearing of the matter.  In a nutshell the appeal raised issues around paucity of evidence.

It was the employee’s view that he was found guilty and penalised on insufficient evidence or evidence not meeting the required standard of proof. See  Zesa v Dera  SC-79-88. Whilst taking issue with ground (a) and e only in its response the employer in its heads and oral submission attacked all the grounds and sought the court to rule that all grounds were improper and to consequently strike the matter off the roll with costs.  The employer was adamant that it was irregular for the employer to challenge 2 grounds then pray for the dismissal of the appeal intoto as if all grounds were in issue.

As indicated earlier though the grounds were presented in a truncate form all they speak to is the question of paucity of evidence.  The court is not persuaded that in their shredded form the grounds are therefore imprecise and liable to having the matter struck off.  It is clear that the employee wants the court to interrogate whether the hearing committee’s exercise of discretion was within the law. See Hama v NRZ 1996 (1) ZLR 664(5).  The reference to facts of the matter does not detract from the fact that in dealing with the matter the hearing committee had to go back to what had been decided by the shop floor level adjudicator albeit interrogating the facts of the matter.  The conclusion to be made is whether the function was a substitution of the discretion of the trier of fact or not. See Nyahondo v Hokonya 1997 92) ZLR 4755(5). The court is satisfied that the point is not well placed and should fail.

Relief

In this regard the employer says that relief had to be specific whether it is about whole appeal or part of it.  This issue need not detain the court as it is patently clear that what was being appealed was a tarso order of one line.  To that extent no other explanation was needed to say which part of the order had to be upheld or dismissed.  The point equally lacking in merit should fail

IT IS ORDERED THAT

The points in limine being without merit they be and are hereby dismissed.  Matter is to proceed to the merits.  Each party bears own costs.

Matika, Gwisai and Partners, Applicant’s Legal Practitioners

DMH Commercial Lawyers, Respondent’s Legal Practitioners