Gillen Sithole v Zimbabwe Mining Development Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/131/14
HELD AT HARARE 7TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/131/14

HELD AT HARARE 7TH FEBRUARY 2014		CASE NO LC/H/50/13

& 14TH MARCH 2014

In the matter between:-

GILLEN SITHOLE						Applicant

And

ZIMBABWE MINING DEVELOPMENT			Respondent

CORPORATION

Before The Honourable P Muzofa, Judge

For Appellant		A Muchandiona (Legal Practitioner)

For Respondent		I Chagonda (Legal Practitioner)

MUZOFA, J:

This is an application for leave to appeal to the Supreme Court against a decision of this court which was handed down on the 2nd of August 2013.

The Appellant filed an appeal before this court against an arbitral award issued by Honourable Ndomene.  Before the appeal proceeded into the merits a point in limine was raised that the grounds of appeal did not raise points of law.  The court made a ruling that the grounds of appeal indeed did not raise any points of law and made an order in the following terms:

“Accordingly the appeal is struck off the roll with costs.”

Consequent on that the Appellant seeks the leave of this court to appeal against the said order.  The basic issue raised by Applicant being that the grounds of appeal raised points of law.  Counsel for the Respondent opposed the application on two grounds that the appeal did not raise any points of law.  The second ground being that the court’s order was to strike off the appeal therefore the Applicant’s recourse should not be an appeal but to remedy the defect and reinstate the appeal.

It was submitted for the Applicant that the Labour Court Rules do not prescribe the contents of a Notice of Appeal.  Further to that it was submitted that the court was entitled to utilise the provisions of Rule 24 of the Labour Act and require the Applicant to clarify any statement contained in the Notice of Appeal.  This is a misplaced argument the law is very clear in relation to grounds of appeal.  Section 98 (10) of the Labour Act provides

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section”

There is no ambiguity in this provision the grounds of appeal should raise points of law.  The Supreme Court in a plenthora of cases have brought questions of fact within this ambit of section 98 (10) where the qualification has been satisfied.  I do not believe this is a situation where the court was supposed to invoke the provisions of Rule 24 of this court’s rules.

The two grounds of appeal raised by the Applicant in its appeal were analysed by the court and the court made a finding that the grounds of appeal did not raise questions of law as envisaged by section 98 (10) of the Act.  The court’s finding was that they were factual issues.  Case law has extended what is a point of law to include a misdirection on the facts that is so serious and outrageous seeHama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC).  Applicant did not make the averment that the misdirection was grossly unreasonable.  On that basis clearly there are no prospects of success on appeal.

Counsel for the Respondent requested this court to award costs against Appellant.  It was submitted that since the court struck off the appeal, the remedy was not to appeal but to correct the defect and reinstate the appeal.  The appeal was not dismissed.  The Applicant instead pursued a procedure leading to Respondent incurring unnecessary costs.  For the Applicant it was submitted that despite the order that struck off the appeal it was as good as dismissed since there was a fatal defect that cannot be cured and referred this court to the case of Hama v National Railways of Zimbabwe (supra).  In my view the court order was to strike off the appeal.  The appeal was not dismissed.  The Applicant had a remedy to pursue.  The Applicant choose to apply for leave, which is within his right to do so.  However the fact that the appeal was struck off the procedure adopted by the Applicant led to Respondent incurring unnecessary costs.  I believe costs on an ordinary scale should be awarded to the Respondent.

Accordingly it is ordered that:-

The application be and is hereby dismissed with costs.

Danziger & Partners, Applicant’s legal practitioners

Atherstone & Cook, Respondent’s legal practitioners