Isabella Muchemwa v DHL International (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/210/24
HELD AT HARARE 7 MAY 2024
CASE NO. LC/H/109/24
AND 9 MAY 2024
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IN THE LABOUR COURT OF ZIMBABWE
LC/H/210/24

Held at HARARE 7 MAY 2024
LC/H/109/24

AND 9 MAY 2024

IN THE MATTER BETWEEN:-

ISABELLA MUCHEMWA
AND
DHL INTERNATIONAL (PVT) LTD

APPLICANT

RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant    Ms. N. Matongwana

No Appearance for Respondent

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act (Chapter 28:01).

Applicant’s prospective grounds of appeal are couched as follows;

1. The court a quo erred in concluding that the applicant made an admission during the hearing proceedings that the figures were not exact where in actual fact a query was raised disputing the correctness of the minutes.
2. The court a quo erred in making a decision that the evidence was sufficient whereas the evidence which was relied upon was drawn from CCTV which was not properly working as indicated by service provider.

I should state that the record showed that the Respondent did not file any response to the matter after being served with the application. Further, Respondent was not in attendance at the hearing despite being served to attend as shown by the documents filed of record.

Ms. Matongwana stated that she would largely abide by the documents filed of record and as it was an unopposed application, she was applying for an order in terms of the Draft Order filed of
 1 record. When asked by the Court whether the issue raised in the first ground of appeal had been raised before the National Hearing Committee, Ms. Matongwana’s reply was that this was not in the grounds of appeal but had been raised as a query but it did not form part of the proceedings. She also averred that the issue had been raised before the Court but was not part of the grounds of appeal filed with the appeal. As far as as the second ground of appeal was concerned. The Court inquired of Ms. Matongwana as to why this had not been part of her submissions before the Court. The Court reminded her that she had stated that ‘the CCTV which was relied upon was limited to the Operations area and did not cover other areas where the Appellant (Applicant) worked, that the Complainant (Respondent) had lost some of the footage and that some of the footage had been lost’. Ms. Matongwana stated that she believed that she had raised the issue though it did not form part of the grounds of appeal.

The Court further asked Ms. Matongwana whether the two prospective grounds of appeal raised points of law which should be placed before the Supreme Court for determination. She was adamant that the grounds raised points without specifically stating which points of law were being raised in the grounds of appeal.

ANALYSIS

Section 92 F (1) of the Labour Act, (Chapter 28:01) provides:

“An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.”

GARWE ja (as he then was) had this to say about points of law in **Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10**:

“The term ‘question of law’ is used in three distinct though related senses. First, it means ‘a question which the law itself 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.’ Second, it means ‘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 the true rule of law is on a certain matter.’ And third, ‘any question which is within the province of the Judge instead of the jury is called a question of law’

The position is also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law. For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection, in other words, that the determination was irrational.”

From the last part of the citation, it must be clear that the court a quo committed an irregularity or misdirection or where the manner in which it exercised its discretion was so unreasonable as to vitiate the decision made. MAKARAU JA) as she then was) weighed in thus in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law is has said in other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

When one considers the issues the Court raised with Ms. Matongwana, one gets the following answers. Firstly, the issue of the inaccuracy or otherwise of the minutes of proceedings before the Hearing Committee was not raised in the grounds of appeal before the National hearing Committee. The National Hearing Committee, as to be expected, did not deal with the matter in its determination. (See Allied Bank Limited v Celeb Dengu and Wilson Tendai Nyabonda SC 53/16). There was an admission by Ms. Matongwana that the issue was not made part of the pleadings placed before the National Hearing Committee but was given as a query. She further added that she expected the National Hearing Committee to deal with it. The position is trite that a tribunal can only deal with a matter that is properly brought before it. The result is that the record placed before this Court did not contain the issue and it was not raised in submissions. This Court did not deal with the matter. It is also a truism that an appellate court will not entertain an issue that was not before the tribunal a quo. The same result befalls the second prospective ground of appeal. The CCTV issue was not part of the pleadings before the National Hearing Committee. The omission to bring it up before this Court is also glaring. The sentiments expressed in respect of the issue involving the minutes applies to the second ground of appeal.

However, what is of utmost importance is whether the prospective grounds of appeal raise any point of law. Elsewhere in this judgment, I pointed out that Ms. Matongwana was unable to explain what points of law emanated from the two prospective grounds of appeal. They are based on factual issues. The law has prescribed that if the appeal is based on factual issues it must be shown that the decision arrived at was so irrational that a reasonable tribunal would not have arrived at the decision on the same facts. MALABA DCJ (as he then was) had this to say in The
 Trustees of the Leonard Cheshire Home Zimbabwe Central Trust v Robert Chiite & Others S 24/15:

“Once a question requires a court to consider whether facts have been established in order to answer it, the court is to determine a question of fact.”


The Court thus finds that firstly, the grounds of appeal do not raise any points of law at all. Secondly, the grounds lack merit as the Applicant did not raise the issues sought to be appealed against before both the National Hearing Committee and this Court for determination. The Supreme Court cannot, in the circumstances, be expected to deal with the appeal. The application 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.
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