Lawrence Munemo v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/238/16
HELD AT HARARE 1 MARCH 2016
CASE NO
JUDGMENT NO LC/H/238/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/238/16

HELD AT HARARE 1 MARCH 2016				CASE NO LC/H/1004/15

& 13 MAY 2016

In the matter between:

LAWRENCE MUNEMO				Appellant

And

CITY OF HARARE					Respondent

Before The Honourable L Hove, Judge

For Appellant 			G Mapaya (Legal Practitioner)

For Respondent		Ms A Zvoutete (Principal Legal Officer)

HOVE, J:

The respondent in this case raised a preliminary issue that grounds number 2, 3, 4, 5 and 6 did not raise any point of law.

The respondent’s position is informed by the provisions of section 98 (10) of the Labour Act [Chapter 28:01] (the Act) which provides as follows

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

If follows therefore that only appeals raising questions of law for determination can be properly raised before this court from decisions of arbitrators.  Grounds of appeal being alleged to be improperly before the court appear on page 4 of the record.  They read as follows;

2.	The arbitrator erred at law (by) holding that the disciplinary proceedings had not prescribed.

3.	The arbitrator erred at law by holding (that) the clause 12.6 (g) of S.I. 171 of 2010 was not violated by the respondent.

4.	The arbitrator erred at law by holding that the penalty of dismissal without consideration of the mitigatory factors (was lawful).

5.	The arbitrator fundamentally erred and grossly misdirected herself on the facts by not finding that there was bias on the part of the chairman and that there was procedural unfairness despite the overwhelming evidence on record.  Such gross misdirection on the facts is utterly outrageous in its defiance of logic that no reasonable tribunal applying its mind on the facts could have come to that decision.

6.	The arbitrator fundamentally erred and grossly misdirected herself on the facts by not finding that the respondent’s case lacked merit.  Such misdirection is in defiance of logic that no reasonable tribunal applying its mind to the facts could have come to that conclusion.  The gross factual misdirection constituted a point of law.

Ground number 1 is not challenged.  It however seeks to bring into issue issues of prescription.  Common sense will therefore dictate that the court should allow itself to look at the issue of prescription raised both in ground number (1) which has not been challenged and also in ground number 2.

Prescription can indeed raise only questions of fact when it seeks to challenge factual conclusions made by an arbitrator but in casu, in view of ground number one the very law applicable in proceedings of this nature is brought into issue.  Ground number 2 is therefore found to be properly before the court.

Ground number 3 is also properly before the court.  It is alleged in that ground that clause 12.6 (g) of Statutory Instrument 171 of 2010 was violated.

A point of fact is one that challenges factual conclusions made.  A point of law seeks to establish the true rule of law.  The court is being asked to look at S.I. 171 of 2010 and clause 12.6 (g) and establish what that provision states and then establish whether or not the facts establish or reveal any violation by the respondent.

See in this case the case of South Africa & Others v Press Cooperation of South Africa 1992 (4) SA 791.

Ground number 4 is also valid as it seeks to challenge a breach by the respondent of the provisions relating to the true rule of law vis a vis issues of mitigation.

Ground number 5 is raising factual issues but it alleges gross irrationality and it is trite that where it is alleged that there has been gross irrationality, the misdirection on factual points may amount to a point of law.  In the case of National Foods Ltd v Mugadza SC 105/95 the court held;

“… But clearly if there is a serious misdirection in the facts it amounts to a misdirection in law.”

The onus is on the appellant to show the serious misdirection during the hearing.  It

therefore cannot be said that the ground is improperly before the court for the reason given that it is only raising factual issues.

Finally ground number 6 also alleges that there were serious misdirection of facts which can amount to misdirection in law see the National Foods case (supra).  The ground is thus not improper on the basis that it is failing to raise a question of law because it is.

See in this case the case of Hama v NRZ 1996 (1) ZLR 664.

Whether or not there was gross unreasonableness is an issue that the court will have to consider during the appeal hearing.  But once an allegation is made that there was gross unreasonableness, there is a prima facie case based on a point of law.

Grounds number 5 and 6 can therefore not be struck off on the basis that they do not raise any point of law.

In the result, grounds number 2, 3, 4, 5 and 6 are raising issues of law and cannot be struck off on that basis and I make the following order;

The preliminary point is dismissed.

The Registrar will set the matter down for continuation.

Mapaya & Partners, appellant’s legal practitioners