Fungai Muchapondwa v ZB Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/738/2014
HARARE, 17 OCTOBER 2014
CASE NO.
JUDGMENT NO. LC/H/738/2014
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IN THE LABOUR COURT OF ZIMBABWE	 	      JUDGMENT NO.LC/H/738/2014

HARARE, 17 OCTOBER 2014		 	                   CASE NO. LC/H/432/12

AND 07 NOVEMBER 2014

In the matter between

FUNGAI MUCHAPONDWA				Applicant

And

ZB BANK							Respondent

Before The Honourable B.T. Chivizhe, Judge

For Applicant	:  Mr. T. Marimo (ZIBAWU)

For Respondent	:  Mr. Z. Makorie (Legal Practitioner)

CHIVIZHE, J:

This is an application for leave to appeal against a decision handed down by this court on the 31st of January 2014. The substantive part of which reads;

“It is accordingly ordered as follows;

The appeal be and is hereby dismissed with no order as to costs.”

The Applicant has in his draft notice of appeal raised the following Grounds of Appeal;

Grounds of Appeal

The learned Judge grossly misdirected herself and consequently erred at law in arriving at finding that is contrary to evidence placed before the court a quo.

The learned Judge grossly misdirected herself on the facts when she failed to ;

Appreciate the accountability and responsibility relationship between the supervisor and the subordinates in a banking environment.

Appreciate the effect of wrongful delegation.

Appreciate the Respondent process flow of work.

Apply the general meaning of authorisation to the facts of this case.

Apply the parity principle in the context of this case.

The Respondent is opposed to the application. The Respondent contention is the Notice of appeal does not raise valid grounds of appeal, the court did not arrive at a finding contrary to the evidence presented before it and so there are no prospects of success on appeal.

Section 92 F (1) of the Labour Act [Cap 28:01] enjoins that an appeal to the Supreme Court against a determination by the Labour Court has to be on a point of law. The Respondent having raised the point that there is no valid appeal before the Court the court shall initially address the point as to whether the proposed appeal is on a question of law.

What is a question of law has been discussed in a plethora of case the leading one being the Muzuva vs United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) where three meanings are ascribed to the term question of law, firstly that it means ‘a question which the law has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter? Secondly it was said to mean ‘a question as to what the law is. Thus an appeal on a question of law means an appeal in which the question for argument and determination is what is the true rule of law is on a certain matter.’ Thirdly it was said to be ‘any question which is within the province of the Judge instead of the jury’. The Court was also referred by the Applicant to two further decisions i.e. National Foods Limited vs Steward Magadza SC 105/95 which laid down the principle that a gross misdirection on facts amounts to a misdirection on the law and also Reserve Bank of Zimbabwe vs Carrime Gringer and Anor SC 34/2001 which also found that a question of law arises where 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, a misdirection of facts being either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.

Applying the principles as outlined in the cases cited I am satisfied that the proposed appeal raises certain questions of law. There are allegations in the proposed grounds of appeal that this court may have committed misdirection on the facts as to amount to misdirection in law. To that extent therefore the court can proceed to consider those proposed grounds of appeal.

The first proposed ground of appeal is that this court may have misdirected itself in so far as comprehending the process of transfers and the implications of the act of delegation by the Supervisor of her role to the Applicant. The Applicant’s  submission is that the court failed to consider that the supervisor still had the overall responsibility to verify and ensure that the documentation was before authorisation. In Applicant’s view, the buck ought to have stopped with the supervisor who delegated to him and not with him as the ‘delegatee’ teller. It was this court’s finding that even where the Applicant had been delegated work the Applicant still had a responsibility to check and verify the application before he sought authorisation and he had clearly failed to do so. I am however persuaded in this case to allow the Applicant to approach the Supreme Court for the superior Court to address more clearly the aspect of delegation vis-a-vis supervisory role, especially taking into account the Supreme Court decision in TM Supermarket vs Mangwiro SC 04/2001 which the court was aptly referred to by the Applicant

The Applicant has also raised issues which he says this court failed to consider and address in its judgement such as the issue that there was no signature on the application form where the customer’s signature ought to have been. The Applicant also alleges that this court failed to apply the ‘parity principle’ in examining the different roles played by three main persons who were disciplined by the Respondent. There is at the moment lack of clarity as to whether the ‘parity principle’ applies in our law and how the principle is to be applied in practice. Although the court’s view is that it correctly weighed in the circumstances of this case the different roles played by the three employees who failed in their duties and were consequently disciplined I believe that a referral of this issue on appeal would facilitate clarity on this nebulous principle by the highest court in the land.

For the foregoing reasons therefore I am satisfied that this is one case where leave ought to be granted.  In the circumstances leave to appeal the Supreme Court is hereby granted in terms of the draft order as filed.

COGHLAN, WELSH & GUEST, Respondent’s legal practitioners