Heywood Gova v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/373/25
LC/H//25
CASE NO. LC/H/697/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/373/25

LC/H//25

HELD AT HARARE 22 SEPTEMBER 2025

AND 9 OCTOBER 2025

IN THE MATTER BETWEEN:

CASE NO. LC/H/697/25

HEYWOOD GOVA	APPELLANT

AND

ZIMBABWE REVENUE AUTHORITY	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

Appellant	In Person

For Respondent	Mr. N. Chidembo

MURASI J.,

Appellant was employed by the Respondent as a bus driver and was involved in a road accident. He was prosecuted in a criminal court and found guilty of the charge. Meanwhile, Respondent levelled allegations of misconduct against the Appellant arising out of the road traffic accident. Appellant was found guilty and dismissed from employment. He appealed to the Appeals committee in terms of the Respondent’s Code of Conduct. Appellant filed his appeal with the Appeals Committee in March 2023. The Appeals Committee only made the determination in December 2023, some nine months later. Appellant has approached this Court for relief.

Appellant’s grounds of appeal are formulated as follows:

The Respondent’s Appeals Committee committed an error of law by failing to determine the appeal within the time limits prescribed by the applicable employment code thereby rendering its decision a nullity.

The Respondent’s Appeals Committee erred in law by failing to provide reasons for upholding the dismissal imposed by the disciplinary and grievance committee.

Submissions by the Parties

Appellant stated that the manner in which the matter was handled in terms of the time limits was his main concern. He submitted that he filed his appeal in March 2023 and it took the Respondent’s Appeals Committee some 9 months to respond to his pleas. He stated that this in violation of the code of conduct. He also expressed his concerns about the manner in the matter had been handled by Grievance and Disciplinary Committee. He further submitted that what

Respondent’s Appeals Committee did was a complete violation of the law. He prayed that matter be dealt with so as to bring closure to the dispute.

In response, Mr. Chidembo stated he had preliminary issues that he wanted to address before delving into the merits. He stated that the first related to the first ground of appeal. He argued that the ground of appeal raised concern about the procedure and not the decision itself. He submitted that the appropriate procedure was to bring the matter by way of review and that the appeal should be struck off the roll on that score. The second issue raised by Mr. Chidembo was the Form that was used. He stated that the utilised Form did not inform the other party of the procedural rights available and that this should of necessity be included in the body of that Form. In this respect, he referred to precedent. The last point was to the effect that the relief that was being sought by the Appellant was incompetent.

On the merits, Mr. Chidembo stated that the first ground of appeal was vague as it did not refer to the requisite timeframes that are provided in the code of conduct. He also stated that Appellant had only referred to the ‘applicable code’ without specifying which code he was referring to. He argued that the Respondent’s code of conduct in Clause 11.3 provided for timeframes and if one had regard to those, there was no violation of the code. He averred that parties had completed filing their documents at the end of April 2023 and that the Code gives a timeline of 5 days for the human Resources Department to refer the matter to the Appeals Committee. He also submitted that an Appeals Committee takes time to be assembled. Asked by the Court whether the decision of the Appeals Committee was made within the prescribed period of time, he stated that he would abide by the documents filed of record.

Preliminary Issues

It is trite that before delving into the merits of the matter, the Court needs to address the preliminary points raised in the matter. The main point raised by Mr. Chidembo concerns the propriety of the appeal before the Court. His argument is to the effect that the proper procedure in casu was for the Appellant to have brought the matter by way of review.

Analysis

Section 89(1)(d) of the Act vests in the Labour Court the power to exercise the same review jurisdiction as that exercisable by the High Court in labour-related cases. More specifically, section 92EE(1) codifies the permissible grounds upon which proceedings or decisions may be brought on review before the Labour Court, namely

“(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the authority; or

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.”

By contrast, section 92D of the Act provides that:

“A person who is aggrieved by a determination made under an employment code may, within such time and in such manner as may be prescribed, appeal to the Labour Court.

The scope of such appeals is clarified in section 92E(1), which states:

“An appeal in terms of this Act may address the merits of the determination or decision appealed against.”

The difference between an appeal and a review is well-established in our law. An appeal concerns the correctness of the decision on its merits, whether the tribunal properly applied the law to the facts or correctly assessed the evidence. A review, on the other hand, interrogates the regularity, legality, and propriety of the decision-making process. It asks whether the proceedings were conducted in accordance with law, and whether the tribunal had jurisdiction and acted fairly.

In ZIMASCO v Marikano SC 06-14 at p. 8, the court held that:

“Review proceedings are concerned with the manner in which a decision is taken and not its merits. If for example a disciplinary authority had no jurisdiction to hear a particular matter, or was biased or its decision grossly unreasonable, the person aggrieved is empowered to approach the Labour Court and apply for the review of the proceedings.”

The position was also highlighted in The Commander of the Defence Forces v Chiba & Ors

SC 48-24 at page 19-20 as follows:

“We agree with Mr Mapuranga that the words “may appeal” do not connote a mandatory command to appeal. They repose a discretion on the member. We also agree with his submission that, an appeal is different and distinct from a review. An appeal seeks to assail the correctness of a decision while a review impugns the process or procedure by which the decision is made. See Muringi v Air Zimbabwe Corp & Anor 1997 (2) ZLR 488 (S) at 490F, Charumbira v Commissioner of Taxes & Ors 1998 (1) ZLR 584 (S) at 585D, Secretary for Transport & Anor v Makuwarara 1999 (1) ZLR 18 (S) and Mugugu v Police Service Commission & Anor 2010 (2) ZLR 185 (H) at 189F-190A. In the instant case, the respondents were neither provided with the record of proceedings nor the reasons upon which the decision was made. They could not therefore impugn the correctness of the decision by appealing it. Rather, they were aggrieved by the decision-making process, which entailed seeking a review.

In S v Maphosa HH 323-13, the court succinctly articulated the distinction as follows:

“… the essential difference between review and appeal procedure is that where the grievance is that the judgment or order of the magistrate is not justified by the evidence, and there is no need to go outside the record to ventilate the particular grievance, then the more appropriate procedure to follow for relief is by way of appeal. An election to appeal confines the legal practitioner to matters reflected in the record of proceedings.”

Similarly, in Khan v Provincial Magistrate and Another HH 39-06 at p. 7, the court stated:

“The differences between a review and an appeal have been dealt with in several judgments of this and the Supreme Court. An appeal seeks to attack the correctness of the decision of the inferior court or tribunal while a review seeks to attack the manner in which the decision of the inferior court or tribunal has been arrived at. Grounds of appeal are unlimited and cannot be prescribed as they relate to the errors in law or in fact made by the court whose decision is under attack. On the other hands, grounds of review are limited by law and have to be laid out in the application for review.”

In summation, the above cited authorities clearly indicate that procedural issues should be brought by way of review and not appeal. Appellant’s matter questions the procedural issue of having had his matter dealt with outside the prescribed period in the code of conduct.

An Aside

This Court and the Supreme Court have expressed concern when labour matters have sought to be dealt with solely on technicalities rather than on the merits. In casu is a matter which shows ex facie the papers that Respondent did not comply with its own code of conduct and rendered its decision some 9 months down the line. However, technicalities preclude this Court from dealing with the matter on the merits because of the technicality attendant to reviews and appeals.

Disposition

It is clear that Appellant should have brought his matter on review rather than on appeal. The matter ought to be struck off the roll.

The following order is appropriate.

1.  The point in limine on the propriety of the appeal is hereby upheld.