Dzivarasekwa (2) HIGH School Development Association V PAUL Chirwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/686/13
HELD AT HARARE 24TH OCTOBER 2013
CASE NO
JUDGMENT NO LC/H/686/13
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/686/13

HELD AT HARARE 24TH OCTOBER 2013	       CASE NO LC/H/289A/12

AND 6TH DECEMBER 2013

DZIVARASEKWA (2) HIGH 				Appellant

SCHOOL DEVELOPMENT ASSOCIATION

PAUL CHIRWA						Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr M Nkomo, Attorney

For Respondent		Mr R Matsikidze, Attorney

MUSARIRI, G:

On 29th March 2012 the Honourable Y Malama made an arbitration award.  In terms thereof, she nullified the demotion of Respondent by Appellant.  Appellant was aggrieved by the ruling.  It then filed an appeal to this Court against the award.

The appeal raised 2 issues.

Whether there was a valid appeal filed?

Rule 15 of this Court’s Rules requires an Appellant to complete his notice of appeal in Form LC3.  The form itself has provided a space where the Appellant shall give in brief the “facts and grounds on which the appeal is based.”  In this case Appellant drew a line across the space without filling in anything.  So ex facie the notice does not give grounds of appeal.

However filed of record is another document which is unsigned and undated.  The document challenged the arbitrator’s jurisdiction to hear the matter.  Appellant argued that this document was filed as an Annexure to its Notice Of Appeal though the notice and annexure do not say so.  On this point I am prepared to give Appellant the benefit of doubt.  Alternatively, in terms of Rule 26 (a) I condone the departure from the Rules in the interest of justice.

Whether the Arbitrator had jurisdiction to deal with the matter?

Though the question begs an answer, I consider that in this case it is unnecessary to answer it.  Why?  Section 89 (1) (d1) of the Labour Act [Chapter 28:01] gives this Court “the same powers of review as would be exercisable by the High Court in respect of labour matters.”  The review power of the High Court is enshrined in the High Court Act

[Chapter 7:06].  Section 27 (1) reads as follows,

“(1)	Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be-

absence of jurisdiction on the part of the court, tribunal or

authority concerned.”

(The underlining for emphasis is mine.)

Similarly, the question whether the arbitrator had jurisdiction can only be brought to the Labour Court by way of review.  Appellant came to this Court by way of an appeal.  Thus it cannot raise a review issue on appeal.  It should have approached the court via an application for review.

There being no other material issue raised by Appellant the appeal must fail.

Wherefore it is ordered that;

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E