C Chikowore & 7 Others v University of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/523/2016
HARARE, 10 MAY 2016
CASE NO. LC/H/523/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/523/2016

HARARE, 10 MAY 2016			     	    CASE NO. LC/H/890/14

AND 9 SEPTEMBER 2016

In the matter between:-

C CHIKOWORE & 7 OTHERS					Appellant

And

UNIVERSITY OF ZIMBABWE					Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr F Muserere (Legal Practitioner)

For Respondent	Mr T Chiwuta (Legal Practitioner)

HOVE, J:

This is an appeal against an arbitral award.

The appellants are employed as drivers by the respondent.  They had a dispute with the respondent over alleged non payment of overtime.  The dispute was referred to an arbitrator who dismissed the claim by the appellants.

The appellants noted this appeal and the grounds of appeal are briefly that;

The arbitrator erred and misdirected herself at law as she applied terms and conditions that do not apply to the appellants.  She used conditions that apply to Grades A, B, C, D & E but the appellants were in Grade F.

The arbitrator erred and misdirected herself at law in applying terms and conditions that the appellants did not sign for.  The signatures on the contracts were to acknowledge receipt and not for any other purpose.

As such the arbitrator erred and misdirected herself at law by then applying the wrong contractual principles to a non existent agreement which appellants did not sign.

The arbitrator erred and misdirected herself at law by failing to take into account the spirit and relevant provisions of the Labour Act and the constitution of Zimbabwe as such the award proves to be grossly unreasonable on the whole.

In response to these grounds of appeal, the respondent raised a preliminary issue and argued that grounds number 1, 2 and 3 are not raising issues of law,  they seeks to challenge factual findings by the arbitrator.

It is true that appeals to the Labour Court from decisions of arbitrators are to be on points of law.  This is so by virtue of the provisions of section 89 (10) of the Labour Act [Chapter 28:01] (the Act).

The appellant does not dispute this position of law but argues that its grounds of appeal raise issues of law.  In paragraph 3 of its heads of arguments.  The appellant submits as follows;

“…. All that an appellant who wishes to impeach an arbitral award by way of an appeal to the Labour Court has to do to confer jurisdiction on the Labour Court is to establish that the litigant is appealing on a point of law.”

This is incorrect.  The correct position is that an appellant who wishes to challenge an arbitral award on appeal must, if he is challenging factual conclusions made by the arbitrator, allege that the findings of fact made were so grossly unreasonable that no reasonable person applying their mind thereto would have arrived at such a conclusion.

This is the position enunciated in several of this courts’ judgments as well as Supreme Court Judgments.  In the case that this court has been referred to that is National Foods v Magadza SC 105/95 the court held that a gross misdirection on the facts amounts to a misdirection in law. The court stated that;

“…. but clearly if there is a serious misdirection on the facts that amounts to a serious misdirection in law.”

An appellant must however allege in the grounds of appeal that the conclusion of facts made were grossly unreasonable.  This averment in the grounds of appeal would enable the court to exercise its jurisdiction.  It is not the mere alleging that the appeal is on a point of law that would enable the court to exercise jurisdiction over the matter.  Stating that an appeal is on a point of law does not necessarily mean that that is so.  One has to be able to show in the ground of appeal that the issue that they are bringing for the court to decide is raising a point of law.  See the case of Sable Chemicals Industries Limited v David Peter Easter brook SC 18/10.

What is and what is not a point of law has been outlined in the case of Muzuva v United Bottlers Pvt Limited 1994 (1) ZLR.

In casu however, the dispute is not whether or not a point of law is being raised.  The appellants’ papers shows that they accept that their appeal is raising only points of fact but they incorrectly argue that the mere stating that the appeal is on a point of law in the grounds of appeal enables the court to exercise jurisdiction over the matter.

The first three grounds are clearly challenging factual conclusions made by the arbitrator.  No point of law is raised.  The appellant however does not make the allegation that there has been gross unreasonableness, on the part of the arbitrator when he made those conclusions of fact.  The position set out in the Sables case (supra) has not been met.  See also Norman Matsuta & Tonderai Katsande v Cargar (Private) Limited SC 47/09.

Grounds number 1, 2 and 3 are thus improperly before the Court and must be struck out.  The preliminary point raised succeeds in relation to the first 3 grounds of appeal.

The 4th and last ground of appeal made the allegation that there was gross unreasonableness.  But it has been challenged by the respondent, not on the basis of it failing to raise a point of law but on the basis that it is incurably vague.  The ground of appeal does not or is not specific as to what exactly it is that the arbitrator is alleged to have misdirected himself on.

The courts have pronounced in previous cases that grounds of appeal must not be vague but must be precise.

In the case of S v MC Nab 1986 (2) ZLR 280 the court had this to say

“An appeal must set out clearly and specifically the ground of appeal.  That which the appellant is attacking in the judgment of the convict the court must be set out.  A generalization …. is not good enough.  It does no point out where the Magistrate erred or misdirected himself.”

In R v Emerson & Ors 1958 (1) 54 442.

“If the ground of appeal is that the magistrate erred in law this should be stated and the particular mistake in law …. should be set out.  If the appellants ground of appeal is that the magistrate has acted on some wrong principle, he should state that out specifically and point how.”

In casu, the 4th ground of appeal fails to set out the particular error in law.  It is not specifically pointing out how the arbitrator erred.  The appellant fails to clearly and specifically set out that which aggrieved the appellant.

It is not clear which provisions were not complied with in the Labour Act and the Constitution of Zimbabwe the appellant gives a vague and generalized reference to the Labour Act and the constitution.

The ground of appeal does not meet the criteria set out in the above cases and is therefore bad and must also be struck out, it is incurably vague.

The preliminary points raised by the respondent in the main appeal have merit and must succeed in relation to all 4 grounds of appeal.

The Cross Appeal

The respondents filed a notice of response and in that notice of response, they gave a notice of appeal.

The appeal does not comply with the rules of court and the law in the following respects.

The ground of appeal is challenging findings of facts.

Appeals to this court must, as earlier stated, be on points of law;

“… 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 into applied his mind to the facts would have arrived at such a conclusion.” my emphasis

Reserve Bank of Zimbabwe v Corrine Granger & Martha Mataruka SC 34/01.

In the cross appeal, the ground of appeal does not make the allegation that there has been a gross misdirection on the facts it reads in part as follows;

“The honourable arbitrator erred and misdirected herself on a finding of fact which amounted to an error in law by neglecting to find that the minutes of the board of drivers upon which the claim for overtime was based was not binding ….”

There is no allegation of gross unreasonableness.  The ground of appeal thus falls foul, like the appellants three grounds of appeal in the main appeal, to the provisions of section 89 (10) of the act.

If factual findings are to be challenged, the allegation must be made that the arbitrator’s conclusion and finding is so grossly unreasonable that no sane person applying his mind thereto could have arrived at such a finding.

See Reserve Bank of Zimbabwe v Corrine Granger and Martha Mataruka SC 34/01 where the court stated that;

“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.”

The ground of appeal in the cross appeal fails to make the allegation and is thus not a proper ground of appeal.

Further the cross appeal is not filed in the correct and acceptable format. The cross appeal is made as part of the Notice of response and is therefore not acceptable.  It is not even set out separately but is included in the notice of response.  It does not even substantially comply with the format of bringing appeals to this court.

In the result, both the appeal and the cross appeal are dismissed with each party bearing its own costs.

Manase & Manase, appellants’ legal practitioners

Ziumbe & Partners, respondent’s legal practitioners