Fortunate Chitiyo v Interpresh Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/629/14
HELD AT HARARE ON 3rd JULY, 2014
CASE NO. LC/H/21/14
AND 26TH SEPTEMBER, 2014
JUDGMENT NO. LC/H/629/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/629/14

HELD AT HARARE ON 3rd JULY, 2014     CASE NO. LC/H/21/14

AND 26TH SEPTEMBER, 2014

In the matter between:-

FORTUNATE CHITIYO 					APPELLANT

AND

INTERPRESH LIMITED					RESPONDENTS

Before the Honourable G. Mhuri, Judge

For Appellant: 	Mr. T. Katsuro (Legal Practitioner)

For Respondents: 	Mr. Z. Kajokoto (Legal Practitioner)

MHURI J.:

At the end of hearing the parties counsels submissions on the point in limine raised by Respondent, I struck off the appeal and indicated that my reasons will follow.

On the 8th of January, 2014, through his erstwhile legal practitioner, Appellant filed an appeal with this Court.  The grounds of appeal can be gleaned from pages 5 – 7 of the record.  These are that:-

Respondent misdirected itself of a point of law and on the facts in finding that Appellant was guilty of misconduct and that he was lawfully dismissed as

Appellant was not given sufficient particulars of the charges.

The Disciplinary Committee violated the Interfresh Limited Code of Conduct as well as the rules of natural justice in that he was not afforded an opportunity to mitigate.

Respondent carried out the disciplinary proceedings in a manner which suggests that Appellant’s dismissal was a foregone conclusion.

The proceedings did not conform legal requirements of substantive fairness.

The record of disciplinary proceedings is inaccurate in several material respects as

The correct dates of hearing were 21 and 27 November and not 14 November, 2013.

No documentary evidence was submitted by complainant.

The record is completely inaccurate as Appellant did not mitigate.

Appellant has a good defence.  He raised that

3.1.1	Charges lacked sufficient particulars.

3.1.2.	Charges did not state the nature of records he

is alleged he did not keep.

Charges were incoherent.

Charges lacked particulars of gross negligence.

3.2	Appellant made a statement in response to charges which had not been amended.  He had a valid defence to the charge.

The penalty did not take into account the provisions of Section 4.6 of the Code.

It was Respondent’s contention that all these grounds of appeal have nothing to do with the merits of the case but rather the procedure.  To that end, Respondent submitted, the appeal is improperly before the Court and must be struck off.

Without not outrightly saying so, Appellant’s legal practitioner however in seeking that he be condoned for filing these grounds for review as grounds for appeal, conceded that the grounds are for review and not appeal.

It is clear from the grounds that Appellant was challenging the procedural aspects of the proceedings and not the substantive issues (merits).  He was aggrieved by the manner the charges were drafted, i.e. that, there were insufficient particulars,

the code was violated.

The record of the disciplinary proceedings being inaccurate.

Wrong dates being mentioned.

No documentary evidence being submitted.

Not being given an opportunity to mitigate.

Judicial review, as Gubbay JA (as he then was) stated, is not concerned with the correctness of the decision but with the decision-making process.  Review does not delve into the merits as such the remedy for the two processes are different.

MURINGI V AIR ZIMBABWE AND ANOTHER 1997 (2) ZLR 488 S at page 490 E-G.

In casu, despite the grounds being review grounds and not appeal grounds, Appellant is seeking reinstatement without loss of pay and benefits.  This kind of relief, is one which a litigant seeks on appeal and not review.

ZFC LIMITED V GEZA 1998 (1) ZLR 137 S at page 139 A.

In a review, since the Court will be concerned mainly with the decision-making process, the remedy will usually be a setting aside of the proceedings and remitting the matter to the tribunal aquo for a re-hearing in a procedurally correct manner, i.e. addressing the procedural irregularities that will have been found to have occurred.

Appellant has been legally represented since the time of noting the appeal.  He was not self-acting when he filed the notice.  His Legal Practitioner should have known better.  The Rules of this Court Statutory Instrument 59 of 2006 in particular Rules 15 and 16 are very clear on the procedure to be followed when one is appealing and/or seeking review of any proceedings. When appealing, a party completes Form LC3 and when seeking review he/she completes LC4.  When he/she intends to do both, forms LC3 and 4 are completed and filed at the same time.

The legal practitioner should have known better that when attacking the procedural aspects the route to take is the review process and when attacking the substantive aspects the route to take is the appeal route and seek the appropriate remedy.

In casu, it is not the case, that among the appeal grounds there is a ground for review or among the grounds for review there is a ground of appeal.  This, the Court can condone as requested by Appellant’s legal practitioner.  Rather all the grounds are review grounds and condonation cannot be granted.  Appellant sought to argue that in his Heads of Argument he addressed the merits of the appeal therefore the Court should proceed to hear the appeal.  I am not persuaded by this submission.  By doing so, this Court will be setting a bad precedent.  Appellant’s source document is the Notice of Appeal which must contain proper grounds.  If the Notice of Appeal does not state the grounds of appeal then it is a nullity and improperly before the Court.  The appeal cannot be entertained but is struck off which I did in casu.

Munyaradzi, Gwisai and Partners – Appellant’s Legal Practitioners

Kajokoto and Company – Respondents’ Legal Practitioner