Godtrev Investments (Pvt) Ltd v Mischeck Gororo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LCH167/23
LC/H//23
HELD AT HARARE 30 MAY 2023
CASE NO. LC/H/1094/22
AND 16 JUNE 2023
IN THE MATTER BETWEEN:-
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IN THE LABOUR COURT OF ZIMBABWE
LC/HI/23

HELD AT HARARE 30 MAY 2023

AND 16 JUNE 2023

IN THE MATTER BETWEEN:-

GODTREV INVESTMENTS (PVT) LTD

AND

MISCHECK GORORO

APPLICANT

RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant

Mr. S.T. Mutema

For Respondent

Ms H. Madzongwe

MURASI J:

On 17 November 2022, this Court issued an Ex Tempore judgment granting condonation to Respondent to file an appeal before this Court. Applicant is dissatisfied with the decision and intends to approach the Supreme Court on appeal. Applicant's prospective grounds of appeal are as follows:

1. The court a quo erred in law by granting condonation notwithstanding that the fatality stating that the application was placed before it in terms of rule 14 of the 2019 rules was on affidavit whose condonation is incompetent as it amounts to amendment of statement on oath.
2. The court a quo erred at law by condoning a fatally defective application for condonation in that the notice of appeal did not comply with rule 43 of the Labour Court Rules, 2017.
3. The court a quo erred in law by condoning an application brought before it in terms of non-existent rules, the effect of which was that the application form was not known to it.
4. The court a quo erred by failing to determine issues for determination particularly points in limine raised by the respondent.


At the commencement of the oral submissions, *Ms Madzongwe* stated that she was no longer opposing the application for leave to appeal to the Supreme Court and was going to abide by the decision of the Court. The Court informed *Mr. Mutema* that, it being an application for leave to appeal to the Supreme Court, he had to motivate his application to enable the Court make a decision on whether the application was worthy of remittal to the superior court. This Court takes the correct cue in this matter from the decision of *GUVAVA JA* in *Leah Nachipo and Another vs Admire Matcha and Others SC 72/22* where the Learned Judge had this say:

> “It should always be borne in mind that the rationale which is considered by this Court is that, a wholly unrestricted right to appeal from every judicial decision by a lower court is frowned upon and may have serious consequences. For instance, a wealthy party may, at every turn, and every ruling appeal thus causing immense problems and a grave injustice upon the other party who may not be so well heeled. It can also have the adverse effect of delaying justice. It is against this backdrop that the requirement to filter cases which come on appeal arose particularly in unterminated judicial proceedings. The decision by the legislature to enact legislation that makes it mandatory for a person to seek leave before appealing an interlocutory decision of a court has been provided in order to ensure that only the most deserving cases proceed on appeal.”

Whilst the Learned Judge was dealing specifically with the provisions of section 20 of the Administrative Court, it is my view that the same sentiments apply to the provisions of section 92 F (2) of the Labour Act.

In submissions, *Mr. Mutema’s* main contention was that the Court erred in granting condonation when the Respondent had cited non-existent rules. He stated that Respondent’s Founding Affidavit had referred to 2019 rules and that Respondent’s legal practitioner had thereafter sought to amend the affidavit. *Mr. Mutema* argued that the Court did not have jurisdiction to grant the amendment of the Founding Affidavit as it was evidence on oath.

*Mr. Mutema* also stated that the relief sought by the Respondent in the draft appeal was incompetent as the grounds of appeal in that draft did not tally with the relief sought. He sought argue that the Respondent had later realized the error and had now amended this in the appeal which had since been filed with the Court. Asked by the Court to explain the gist of the second prospective ground of appeal, *Mr. Mutema* conceded that he had made an error as that ground referred to Rule 43 which was wrong. He asked the Court to have the second ground of appeal expunged from the record.

Analysis

In *Trans-African Insurance Co. Ltd vs Maluleka 1956 (2) SA 273 (A)* the following was stated at 278 F-G:


“Technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

Further, in Le Grand v Carmelu (Pvt) Ltd 1979 RLR 402 AD it stated as follows at 404 F-H:

“The Civil Courts in common with the Criminal Courts exist to do justice and not to provide some practitioners with a forum in which relying upon technical and wholly academic points, attempt to prevent a Court adjudicating upon the real issues…A Civil Court is not to be allowed by the presiding judicial officer to degenerate into a contest on technical and wholly academic points which obscure and even frustrate a trial on the real issues.”

In casu, Mr. Mutema’s main contention is that the Court ‘allowed’ the Respondent to amend a sworn statement. As pointed out to Mr. Mutema during oral submissions, Respondent’s Counsel realized that the Founding Affidavit referred to 2019 Rules and brought that to the attention of the Court. It is patently clear that there are no ‘2019’ Labour Court Rules. There are 2017 Labour Court Rules. The question that must be asked is whether Respondent was seeking to ‘amend’ the sworn statement as alleged by Mr. Mutema. The Legal practitioner in question, as an Officer of the Court, was duty-bound to bring to the attention of the Court the error that existed in the Founding Affidavit. This, in my view, did not amount to an application for amendment of the ‘sworn statement’. This was clearly an error and Applicant’s Counsel intends to create a mountain out that ‘mole-hill’. As stated in the above-cited cases, Mr. Mutema is attempting to raise a technical issue where none exists. The first prospective ground of appeal is clearly without merit.

As stated elsewhere in this judgment, Mr. Mutema later conceded that the second prospective ground of appeal was meaningless and requested that it be expunged from the record.

The third prospective ground of appeal raises the point that was raised in the first ground. The observations made earlier in this respect apply to the third ground of appeal.

The fourth prospective ground is problematic. It does not succinctly bring out what it is that the Supreme Court is supposed to be dealing with. The points in limine are not identified so that it is known what Applicant is dissatisfied about. This was the subject of discussion by GARWE JA (as he then was) in Dr Nobert Kunonga vs The Church of the Province of Central Africa SC 25/17. The case counsels against the filing of grounds of appeal which are so widely expressed that they leave the appellant free to canvass every finding of fact and every ruling of the law made by the court or that they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent. After going through cases from this jurisdiction and those from the South African jurisdiction, the Learned Judge had this to say at pages 14 and 15 of the cyclostyled judgment:
 “In van de Walt v Abreu 1994 (4) SA (W) Stegmann J made an exhaustive review of case law relating to notices of appeal from the Magistrates Court in South Africa. That case is authority for the proposition, based on the Magistrates Court Rules of South Africa, that there are two distinct requirements, both of which have to be satisfied, for a proper notice of appeal disclosing a valid ground of appeal. Firstly, the notice must specify details of what is appealed against (i.e. the particular findings of fact and rulings of law that are to be criticized on appeal as being wrong) and secondly, the grounds of appeal (i.e. it must indicate why each finding of fact or ruling of law that is to be criticized as wrong is said to be wrong.) For example, because the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary; or because it is inconsistent with the oral evidence of one or more witnesses; or because it is against the probabilities.”

Firstly, the ground of appeal states that the points in limine were raised by the respondent. This must be an error which Applicant’s Counsel did not seek to correct. Secondly those points in limine which it is alleged the Court did not consider are not identified. Thirdly, it is customary and a truism that an appeal should be focused on the findings made the court a quo, and in this case Applicant’s Counsel does not relate the prospective ground of appeal to the judgment delivered by the Court. It is thus my view that the application for leave to appeal is devoid of merit and ought to be dismissed.

In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with no order as to costs.

Stanlous and Associates
Mufari and Paradzayi

Applicant’s legal practitioners
Respondent’s legal practitioners.
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