Goodway Tahwa Mvududu v Chitungwiza Municipality

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/177/2016
HARARE, 23 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/177/2016

HARARE, 23 FEBRUARY 2016			          	       CASE NO. LC/H/899/15

AND 18 MARCH 2016

In the matter between:-

GOODWAY TAHWA MVUDUDU					Appellant

And

CHITUNGWIZA MUNICIPALITY					Respondent

Before The Honourables E. Makamure and

F.C. Maxwell, Judges

Appellant			In person

For Respondent		Ms S Nyagura (Legal Practitioner)

MAXWELL, J

At the hearing of this matter respondent raised a point in limine which is the subject of this judgment.

Appellant noted an appeal on 9 October 2015.  The notice of appeal has twenty-four pages.  The grounds of appeal are in pages 19 to 24, numbering 9 with each having four or more subsections.  In summary, Appellant is aggrieved by

failure by the Arbitrator to comply with the Supreme Court Civil Appeal NO SC 129/11 of 28 March 2014;

failure by the Arbitrator to comply with the Labour Court Judgment NO. LC/H/541/14 of 15 August 2014 as amended on 31 October 2014;

failure by the Arbitrator to comply with the Labour Court Order No. LC/H/1249/15 of 15 July 2015;

failure by the Arbitrator to complete the quantification within the 30-day deadline as ordered by the Labour Court in Labour Court Order No. LC/H/1249/15 of 15 July 2015;

failure by the Arbitrator to award claimant his claim of $8 594 152.60.

reference by the Arbitrator of an appeal on a question of law, case No. LC/H/69/08 lodged with the Labour Court on 5 August 2010 to the Labour Officer/provincial Labour Officer/impartial authority to dispose of the matter by conciliation.

Altering of Court judgments orders issued by Superior Courts by the Arbitrator by issuing new directives/terms of reference for conciliation in the form of letters addressed to appellant;

Arbitrator issuing new directives/terms of reference after recusing herself from the quantification proceedings  and

Arbitrator not applying her mind to the issues before her.

Appellant prayed for the setting aside of the Arbitrator’s decision, an order that respondent pays him $8 594 152.60 alternatively that this Court quantifies back pay and damages taking into account the judicial decisions of the Supreme Court and the Labour Court referred to above.

In response respondent pointed out that the appeal is improperly before the court as it seeks to challenge procedural aspects of the matter.  Respondent went on to respond to each of the issues raised in the grounds of appeal on the merits.

The rules of this Court provide for appeals and reviews separately.  Appeal proceedings are governed by Rule 15 of SI 59/06 whilst review proceedings are governed by Rule 16.  It is therefore obligatory for litigants to use the correct procedure when approaching this court.  The distinction between a review and an appeal has been stated time and again in our Courts.  As stated in Muringi v Air Zim Corporation & Anor 1997 (2) ZLR 488.

“Judicial review, as the phrase implies, is concerned not with the correctness of the decision but with the decision-making process.”

An application for review challenges procedural irregularities and not the substantive merits of the decision sought to be impugned.  See Nambuta & Ors v Dunlop Zimbabwe Ltd & Anor HB 14/04 and Dogo v TEDCO Management Services (Pvt) Ltd HH 71/04.

Appellant indicated to the court that he was aggrieved by the mandate of the arbitrator after her recusal as in his view she was functus officio by the time she issued the ruling.  He was also aggrieved by the Arbitrator’s delegation of her decision making function to another person.  Appellant also confirmed that he was aggrieved by the Arbitrator’s non-compliance with court orders.  Clearly appellant is aggrieved by procedural issues.  There are no substantive issues raised in the grounds of appeal.  The point in limine therefore has merit and it succeeds.

Wherefore I order as follows

The point in limine be and is hereby upheld.

The appeal be and is hereby dismissed.

Matsikidze & Mucheche, respondent’s legal practitioners

………………………………….

Maxwell J

…………………………………   I agree

Makamure J