Dairiboard Zimbabwe Ltd v Nelson Dzirutwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/80/2014
HARARE, 23 JANUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/80/2014

HARARE, 23 JANUARY 2014    		               CASE NO. LC/H/69/10

AND 14 FEBRUARY 2014

In the matter between:-

DAIRIBOARD ZIMBABWE LTD						Appellant

And

NELSON DZIRUTWE							Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr. A.K. Maguchu (Legal Practitioner)

For Respondent		-	Mr. A. Chambati   (Legal Practitioner)

MUZOFA J:

This is an appeal and review against an arbitral award made in favour of the Respondent.

Before the matter proceeded on the merits counsel for the Respondent raised points in limine.  The first point in limine was that the Appellant’s Heads of Argument introduced new evidence which was not before the Arbitrator.  The evidence so challenged was in respect of one E. Gwatiringa’s statement.  However upon clarification by Counsel for the Appellant, it was rightly conceded by counsel for the Respondent that there was no new evidence introduced.  Accordingly the first point in limine was abandoned.

In its Heads of Argument counsel for the Respondent had also raised a point in limine that the Appellant was approaching the court with dirty hands.  It was alleged that the Appellant had reinstated the Respondent and did not pay the due salaries and wages during the said period.  The point in limine was not taken further before this court, it remained a bare unsubstantiated allegation and therefore this court will treat is as abandoned.

The second point in limine raised before this court was that most of the grounds of appeal did not raise a question of law as envisaged by section 98 (10) of the Labour Court Act [Cap 98:01] – Counsel for the Respondent went at length to demonstrate to this court how the grounds of appeal raise questions of fact and most importantly that there was no averment that the factual findings were grossly unreasonable.  In response Counsel for the Appellant also went into detail trying to show that the grounds of appeal were properly before the court in that there was an averment that the Arbitrator “erred grossly”.  It was further argued that the court should not be bogged on words but should be alive to the substance of the grounds of appeal.

As noted before this is an appeal and a review of an arbitral award.  In filing its grounds for appeal and review it was not stated which grounds relate to an appeal and which ones relate to a review.  Where such a combined application is made it is desirable that grounds upon which the party rely upon are clearly set out as either grounds for review or grounds of appeal.  That as it may the court will address the point limine as if all the grounds being challenged are grounds of appeal.

There is a plethora of cases dealing with the issue on questions of law including Muzuva v United Bottlers 1994 (1) ZLR 217.  In casu it would appear both counsel focused on the issue in relation to a question fact, when can it amount to a question of law.  In Sable Chemicals Industries (Pvt) Ltd v David Peter Easter Book SC 18/10, the Supreme Court had this to say

“The position is also settled that a serious misdirection on the facts amounts to a misdirection at law as the giving of reasons that are bad at law constitutes a failure to hear and determine according to law, for an appellant to avail himself of misdirection as to the evidence the nature and circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection”.

Also in the case of RBZ v Carrine Granger and Anor 2001 ZLR the court had this to say

“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 applying his mind to the facts would have arrived at such decision …”

Clearly a misdirection on the facts can amount to a misdirection at law where there has been a qualification that it was unreasonable and outrageous.  Thus bringing the factual findings within the ambit of section 98 (10) of the Labour Act [Cap 28:01].  Bearing in mind the law on the issues raised I propose to deal with the grounds of appeal as they appear on the notice of appeal.

It was submitted on behalf of the Respondent that the grounds of appeal do not allege that the Arbitrator’s findings were grossly unreasonable and referred this court to the case of Macfalene Matemba v Rural Electrification Agency LC/H/431/07.  Appellants’ grounds of appeal donot allege that the Arbitrator’s findings were grossly unreasonable that no reasonable person applying his mind thereto could have arrived at such a conclusion.  However as submitted by counsel for the Appellant there is an allegation in all the grounds of appeal that the arbitrator erred grossly.

It was further submitted by counsel for Appellant that the court should not be bogged down with actual words but should consider the substance of the grounds of appeal.  Counsel referred this court to the cases of Gordon and Jacobson v Johannesburg Liquor Licencing Board 1995 (2) SA 59 and the Government of the Republic of South Africa (Department of Industries) v Fibre Spinners and Weavers (Pvt) Ltd 1997 (2) SA 324 D.  The Gordon case concerned itself with the test of the expression “grossly unreasonable”.  The latter case addressed the expression “gross negligence”. Neither of these two expressions were used by the Appellant in its grounds of appeal.  Instead in all the grounds of appeal the appellant used the expression ‘erred grossly’ I believe the cases would not be relevant to appellant’s case.  According to Appellant an appeal should be based on a misdirection, error beyond an ordinary one, the misdirection should be qualified.  Therefore from the Appellant’s view the error made by the Arbitrator has in all instances been qualified.

The gravamen of this case is whether “grossly unreasonable” amounts to “erred grossly”.  According to the Oxford Advanced Learner’s Dictionary 7th Edition (2006) the terms used are defined as follows;

err means to make a mistake; grossly means extremely (used to describe unpleasant qualities) and unreasonable an adjective means not fair; expecting too much.

In my opinion if there is an allegation that there was a mistake and that mistake was gross it qualifies that the Arbitrator did not make an ordinary mistake.  I agree with counsel for the Appellant the court is not expected to look for the same words but to the substance.  I admit that there was no allegation that “… no reasonable person applying his mind to the facts would have arrived at such a decision …” For all intents and purposes I believe where there is an averment that a gross mistake has been made that can be inferred.  Accordingly it is this court’s finding that the Appellants have brought the factual findings within the ambit of section 98 (10) of the Act by alleging that the Arbitrator “grossly erred”.  The following order is made.

The point in limine be and is hereby dismissed.

There is no order as to costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Chambati & Mataka, respondent’s legal practitioners