Kushinga Driving School v Fungai Kadzonga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/ORD/710/2016
HARARE, 24 OCTOBER 2016 &
CASE NO LC/H/1040/2014
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	                            LC/H/ORD/710/2016

HARARE, 24 OCTOBER 2016 &	                                           CASE NO LC/H/1040/2014

4 NOVEMBER 2016

In the matter between:

KUSHINGA DRIVING SCHOOL	          				        APPELLANT

Versus

FUNGAI KADZONGA					                    RESPONDENT

Before The Honourable Manyangadze J

(IN CHAMBERS)

MANYANGADZE J:

This appeal was dealt with on the record in terms of section 89 (2)(a)(i) of the Labour Act, [Chapter 28:01] (the Act). It is an appeal against an arbitral award handed down on 4 April 2014, in terms of which the appellant was ordered to reinstate the respondent without loss of salary and benefits, or pay him damages in lieu of reinstatement.

The problem with this appeal is that the grounds of appeal are not clearly stated. Form LC 3, on which the appeal is noted, states the grounds of appeal as follows:

“1.	Mr Fungai Kadzonga was procedurerly (sic) dismissed.

2.	He was not entitled to use company car as motioned (sic).

3.	The matter to be considered through merits.

4.	The arbitrator sited a messenger as respondent.”

It is not clear what the appeal is about from these terse averments.

The appellant filed further grounds of appeal, which appear to be an elaboration of those tersely outlined in Form LC 3. These read as follows:

“This is an appeal against the arbitrational (sic) award where an arbitrator quantified damages in lieu of reinstatement. This was (sic) the appellant failed to reinstate the respondent as ordered by the arbitrator. The appellant, aggrieved by that award appealed to this court on the basis that the order of reinstatement did not suit (sic) since the respondent was not dismissed in (sic) basis of the criminal court verdict but the respondent being acquitted by the court never returned back to work until the appellant was surprised by receiving some notifications to attend conciliation hearing at the Ministry of Labour.

The respondent was dismissed in line with the Statutory Instrument 15 of 2006 section 4 for absence from work for a period of time of more days (sic) without leave or reasonable cause.

The arbitrator also made the appellant to be aggrieved by citing Mr F Kujenga as a labour consultant of which the arbitrator was the one who instructed Mr Kujenga after giving him the message that the respondent was seeking a postponement of the hearing date. So in question (sic) if the message was set (sic) to him by any other means e.g POST, DHL was he the arbitrator to cite post (sic) agent.”

It is difficult to appreciate what the appellant is averring. The whole passage is incomprehensible. The respondent had difficulty in responding to the appeal, in the form in which it is. The respondent simply stated:

“The appellant’s grounds of appeal have no substance at law.”

Grounds of appeal must be clear, specific, precise and concise. In the case of Christopher Nyamukapa v The State HH 60/11 DUBE J stated:

“Grounds of appeal should be clearly stated and should not be in general form. As enunciated in R v Jack 1990 (2) ZLR 166, a notice without meaningful grounds of appeal is not a notice of appeal, …

The first ground avers that the trial magistrate relied on unsafe evidence to convict. If the ground is meant to challenge the magistrate’s findings of fact, it is not specifically so stated. In R v Emmerson 1958 (1) SA 442, BEADLE J said:

‘If the ground of appeal is that the magistrate erred in law this should be stated, and the particular mistake of law which the magistrate is alleged to have made should be set out. If however, the ground of appeal is that the magistrate erred on the facts this should be stated, and the applicant should go further and state whether the magistrate erred in accepting the evidence led or in regarding that evidence as sufficient to prove the offence.’”

The grounds of appeal cited above fall far short of the basic requirements of clarity and precision. They cannot be allowed to stand as they are, even for a self-actor such as the appellant was. In the circumstances, there is no proper appeal before the court.

It is accordingly ordered that:

The appeal be and is hereby struck off the roll.

Each party bears its own costs.