Ismael Makuzha v Zimbabwe Consolidated Diamond Company

### Preamble
THE LABOUR COURT OF ZIMBABWE HARARE, 14 SEPTEMBER, 2023
JUDGMENT NO. LC/H/292/23
CASE NO. LC/H/453/23
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THE LABOUR COURT OF ZIMBABWE HARARE, 14 SEPTEMBER, 2023

AND 03 OCTOBER, 2023

In the matter between:-

Ismael Makuzha

Versus

Zimbabwe Consolidated Diamond Company

Before The Honourable L. Hove, Judge:

For Applicant	: A.T.Nhidza

For Respondent	: Miss R.R.Mutindindi

HOVE J:

JUDGMENT NO. LC/H/292/23 CASE NO. LC/H/453/23

Applicant

Respondent

The applicant in casu seeks leave to appeal to the Supreme Court against this Court’s Judgement

which dismissed his appeal.

The application for leave to appeal was opposed. The respondent argued that the applicant’s grounds of appeal do not raise any questions of law. Further, the application was resisted on the basis that the intended grounds of appeal were not concise and that they were long and rumbling.

The first intended ground of appeal reads as follows;

The Honourable Court misdirected itself on the facts and law when it upheld the appeals officer’s conclusion that appellant had been duly convicted for acting in a manner which was inconsistent with his express or implied employment conditions, but without reliance on any evidence of abuse of respondent’s OK Mart account by appellant. The Court a quo solely rested on Prudence Chibvuri’s bold averments that appellant had telephonically told her that he had swiped for payment of the 150 by 20 kgs of sugar from OK Mart kgs of sugar from OK Mart and had taken some to Harare for

his personal benefit. The Court a quo’s misdirection was so gross in its defiance of logic, in that, direct evidence was there of OK Mart’s Safeguard Security’s CCTV footage as witnessed by SGT

Pafiwa and others showing OK Mart’s own stuff purchasing the sugar complained of, loading it into a Toyota Fun Cargo vehicle which neither belonged to appellant nor to respondent and offloading it into dollar Nyama Butchery whose staff, Douglas Gondahwa’s bank card is the one actually used for payment of the sugar transaction complained of.

The second ground reads as follows;

The Court a quo grossly misdirected itself on facts and law when its disregarded complainant, Mr L. Wadawareva’s testimony that one OK Mart staff caught on the aforesaid CCTV footage, Masimbaashe Mare had priorly telephoned the complaint confessing falsely implicating the appellant in the sugar transaction complained of to cover their backs. It was with respect unreasonable for the Honourable Court to disregard Masimbaashe’s confession it having not been controverted by the complaint before the court a quo and also a similar confession having been made by Brighton Mhlanga under cross examination during the Disciplinary hearing.

Applicant’s submission

The applicant submitted that the issues being raised were res-judicata, having been decided by the Court during earlier proceedings. It was submitted that the parties were the same and the dispute or issues were the same. It was also submitted that the issue was being raised for the first time in the heads of arguments and it was not in the opposing papers, the respondent’s affidavit. The matter was thus argued to be improperly before the Court as a case, should rise or fall on its founding papers.

It is true that in the papers filed in response to this application, the respondent did not challenge the grounds of appeal on the basis that they were not precise nor concise. This is however a legal point which can be properly raise at any time, even on appeal. The points are therefore properly raised.

The appellant also argued that the matter is re judicata. This cannot be so. The current application is a new dispute between the parties. It is not the same case as the 2020 case that was decided by Judge Manyangadze. This is an application for leave to appeal and none of the issues raised therein where previously decided by the Court. For the special plea of res judicata to succeed, it must be established that the judgement given in the prior case concerned the same subject matter, that it was founded on the same grounds and was between the same parties.

See in this regard the case of Madondo v Fyfe & ors 1988 (1) ZLR 138

While the parties maybe the same, the judgement given in the prior case did not concern the same subject matter. This is a new matter concerned with, whether or not the applicant can be given leave to appeal to the Supreme Court and further the two cases are not founded on the same grounds. There is therefore no merit in all of the applicant’s submissions.

Whether or not the grounds are precise and concise

The grounds are clearly long and rumbling. They certainly are not precise and neither are they concise. The Court must not be made to guess or work out precisely what the applicant intends to challenge. Grounds of appeal must be clearly set out to enable the respondent and the Court to be fully informed of what it is an appellant would be challenging, see the case of Chikura NO and anor v A/Sham’s Global BVI Ltd SC 17/17. The Court cannot sift through long and winding grounds of appeal in order to work out what grieves the appellant.

The other point raised is that the grounds of appeal do not raise any point of law. A perusal of the grounds show that no legal issue is being raised. The applicant is raising factual issues. This is contrary to the provisions of section Section 92 F of the Labour Act [ chapter 28:01] (the Act) which provides that;

“an appeal on a question of law only shall lie to the Supreme Court from any decision of the

Labour Court.”

The applicant appears in its heads to conceded this point but argues on the basis of Reserve Bank of Zimbabwe v Granger & anor SC 34/01 and zvokusekwa v Bikita RDC 44/15 that were the misdirections on the facts are gross this would amount to a question of law.

The applicant however failed to demonstrate the gross findings of facts. The applicant seems to be simply complaining that the Court was wrong in making particular findings and should have instead made different findings or believed a particular witness as opposed to another. This is exactly what was frowned upon by the Supreme Court in the case of Mahommed v Kashiri SC 85/19. In Zimabwe Open University v Ndekwere SC 52/19 the Supreme Court stated as follows;

“the gross aberrations on the facts was not articulated. It remains a bold allegation impugning findings of fact. It did not state how and in what way the arbitrator grossly erred in reaching the conclusion that was sought to be impugned. In these circumstances, it remained an attack against a simple finding of fact and clearly does not raise any issue of law.”

This is the same case as in casu. Gross misdirection has not been substantiated. It has not been demonstrated that the misdirection, if any, was so grossly unreasonable that any reasonable person applying his or her mind could not have arrived at such a conclusion of facts. See Hama v National railways of Zimbabwe 1996 (1) ZLR 664.

In the end the grounds remained simple attacks on the factual findings which cannot be the basis of an appeal in terms of S 92 F of the Act.

In the result it is found that the intended grounds cannot succeed on appeal as firstly they are not concise and secondly, they raise no point of law.

The objections by the respondent have merit and must succeed.

Order:

The application for leave to appeal be and is hereby dismissed. There is no order as to costs.