Ishmael Makuzha v Zimbabwe Consolidated Diamond Company (ZCDC)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/31/2021
HARARE, 22 MARCH 2021 &
26 MARCH 2021
CASE NO: LC/H/128/20
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/31//2021

HARARE, 22 MARCH 2021&			   CASE NO LC/H/128/20

26 MARCH  2021

In the matter between: -

ISHMAEL MAKUZHA					APPELLANT

AND

ZIMBABWE CONSOLIDATED DIAMOND 		RESPONDENT

COMPANY (ZCDC)

Before the Honourable Manyangadze  J

For the Appellant		Mr A.T.  Nhidza (Legal Advisor/Trade Unionist)

For the Respondent		Mr E. Matsanura (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of the respondent’s Appeals Officer handed down on 11 November 2020, which upheld the decision of the Disciplinary Authority, in terms of which the appellant was found guilty of misconduct and dismissed from employment.

The  brief facts of the matter are that the appellant was employed by the respondent as Welfare Officer. Sometime in May 2020, 150 x 20 kg cases of sugar, valued at  RTGS$98 985,00,  were purchased at OK MART, Mutare. The goods were procured as a bulk purchase purportedly ordered by the respondent, in a scheme allegedly involving the appellant and some employees of OK MART. Investigations revealed that the respondent had not placed such an order.  This resulted in the OK MART employees concerned being dismissed from employment for misconduct.

On its part, the respondent charged the appellant with misconduct, under the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (the National Code). The charge was contravening   s 4 (a):

“any  act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract;...”

A  Disciplinary Authority appointed in terms of the National Code found the appellant guilty as charged, and imposed a penalty of dismissal. His internal appeal to the Appeals Officer was dismissed, prompting the instant appeal.

The respondent raised 3 points in limine, to the effect that;

The grounds of appeal are not clear and concise.

The grounds of appeal do not raise questions of law.

The prayer in the notice of appeal is fatally defective.

Having gone through the 6 grounds of appeal, I am unable to uphold the 1st point in limine. The respondent avers that the grounds of appeal are unclear, repetitive, long and rambling. As such, they breach the well established principle that grounds of appeal must be clear, precise and concise. See Dr Kunonga v The Church of the Province of Central Africa SC 25/17.

The grounds of appeal consist of 6 separately numbered paragraphs. The paragraphs are, in my view, brief and easy to read. Each one attacks a specific finding/ conclusion made by the Appeals Officer on the facts of the matter. They can hardly be said to be prolix or rambling. If at all they are to be impugned, it might be on the basis that they deal only with the factual findings of the Appeals Officer. This is the subject of the second point in limine.

In the second preliminary point, the respondent avers that the grounds of appeal are challenging the factual findings of the Appeals Officer and do not raise questions of law. Indeed, a perusal of the grounds of appeal shows that the appellant is attacking the factual findings of the Appeals Officer. There are no averments on the law, as defined in the often quoted case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217. On the face of it, the second preliminary point appears to carry some merit, and may persuade one to view the grounds of appeal as invalid.

However, in countering this submission, the appellant raises the pertinent point that a gross misdirection on the facts amounts to a misdirection on the law. He further argues, in paragraph 4 of his heads of argument, that even though he may not have specifically put it that way when drafting the grounds of appeal, they do bring out that important aspect. In this regard, the appellant referred the court to the cases of RBZ v Granger & Another SC 34/O1, Zvokusekwa v Bikita Rural District Council, SC 44/15.

I agree with the submissions made by the appellant on this aspect. The import or substance of his grounds of appeal is that the Appeals Officer misdirected himself in his findings of fact,  such that the misdirection constitutes an appealable point of law. For this reason, I am unable to uphold the second point in limine.

The 3rd preliminary point deals with the prayer in the notice of appeal.  It is silent on what should happen to the decision of the Disciplinary Authority. The respondent avers that this makes the prayer fatally defective, and consequently the notice of appeal.

The respondent referred the court to some cases where this issue was dealt with, such as Mudyavanhu v Saruchera SC 75/15, Ndlovu v Ndlovu and Another SC 133/02, Fadzai John v Delta Beverages Limited SC 40/17, T. Dimingo v ZIMRA, LC/H/116/18, T.Sithole v ZIMRA  LC/B/55/19. In Fadzai John v Delta Beverages Limited, the Supreme Court specifically addressed this aspect i.e. the effect of a defective prayer on the notice of appeal. GUVAVA JA stated, at pages 3 – 4 of the cyclostyled judgment;

“...In seeking the setting aside of the decision of the court a quo, the appellant neglected to address what should happen to the decision of the disciplinary hearing.”

It appears the appellant is conceding this defect by introducing an amendment to the notice of appeal. This amendment is contained in the Answering Affidavit. I must point out that it is not clear on what basis the appellant filed a Founding Affidavit and an Answering Affidavit. Such documents are not provided for in an appeal. The respondent however, took no issue with these peculiar affidavits, as they were not part of its points in limine.

Be that as it may, the authorities referred to, supra, also hold that a fatally defective appeal cannot be amended. The proper course of action would be to have it struck off the roll.

In  the  circumstances, the 3rd preliminary point is found to have some merit and is accordingly upheld.  It is on the basis of the 3rd point in limine that the appeal will be struck off the roll.

IN THE RESULT, IT IS ORDERED THAT:

The 1st and 2nd points in limine be and are hereby dismissed.

The 3rd point in limine be and is hereby upheld.

The appeal be and is hereby struck off the roll.

The appellant bears the respondent’s costs.

A.T. Nhidza,  Appellant’s Legal Practitioners

Caleb Mucheche Law Chambers, Respondent’s Legal Practitioners