Liston Baaslum & Ors v Crazy Cutlery

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/362/2016
HARARE, 23 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/362/2016

HARARE, 23 FEBRUARY 2016	  		               CASE NO. LC/H/567/13

AND 10 JUNE 2016

In the matter between:-

LISTON BAASLUM & ORS					Appellants

And

CRAZY CUTLERY							Respondent

Before Honourable R. Manyangadze, J

For Appellants 		Mr T. Hombarume (Trade Unionist)

For Respondent		Mr R. Mufuka (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 16 July 2013, in terms of which the appellants’ claim that they were unlawfully dismissed and that they were owed terminal benefits was dismissed.

The brief facts of the matter are that the appellants were employed by the respondent, in various capacities.  It appears they were engaged from 2010 to 2013.  The finding by the arbitrator was that they were employed on fixed term contracts, which were not further renewed.  Thus, the appellant’s contracts were terminated at the expiry of the fixed term contracts.

Upon termination of their employment, the appellants lodged a complaint of unfair dismissal, alleging that they were on permanent contracts of employment.  Conciliation failed.  The matter was referred to compulsory arbitration, leading to the arbitral award in contention.

The grounds of appeal, which were inelegantly drafted by the appellant’s trade union representative, read as follows:

“The Arbitrator’s award lacks merit.

The Arbitrator failed to consider whether the Applicants were paid accrued leave days.

The Arbitrator failed to consider the Applicants were on verbal contracts.

The Arbitrator failed to note that the Applicants sometimes work for 3 days at 24 hrs in a week.

The Respondent should be taught for belittling the Labour Act and its statutes.”

A reading of the respondent’s heads of argument shows that it has mainly taken issue with the propriety of the appellants’ grounds of appeal.  The respondent, essentially, avers that the grounds of appeal are too vague and general, and as such do not constitute proper grounds of appeal.  It is not clear what questions of law and fact the grounds are challenging.  It is not clear in what specific respects the arbitral award is being impugned.

Indeed, the inelegantly penned grounds of appeal are too broad, general and vague.  It is not clear in what specific aspects the arbitral award is being challenged. The need for clear and specific grounds of appeal was emphasised in the case of Christopher Nyamukapa v The State, HH 60/11.

Although the judge in that case was dealing with a criminal appeal, the remarks made are equally applicable in civil appeals.  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 at 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.”

In casu, the grounds of appeal are such that the Court has to figure out what it is the appellant is averring.  This places an unnecessary burden on the court.  It must be clear, from a reading of the grounds of appeal, what issues are being appealed against and on what basis.  The issues must be concisely and specifically averred.  They must be clear ex facie the grounds of appeal.  The court must not be made to painstakingly glean from the record what it is the appellant is impugning in the arbitral award.  For instance, the first ground of appeal simply states

“The Arbitrator’s award lacks merit”.

I refer to it as the first ground of appeal as it appears first on the unnumbered grounds of appeal.  The appellant’s representative marked the grounds of appeal by means of bullets.  The title of the document cites the appellants as the applicants.  It is not pointed out in what respects the arbitrator’s award lacks merit.  The subsequent grounds, quoted supra, are similarly broad and vague.  The last bullet sounds emotional, without showing what it is the respondent has violated.  This ground states that “the respondent should be taught for belittling the Labour Act and its statutes.”

It simply shows the appellants are angry and want the respondent to be taught a lesson.  It leaves the court wondering what lesson it is being called upon to teach the respondent.

The grounds of appeal create the distinct impression that the trade union official the appellants engaged to note the appeal on their behalf was clueless as to how the task should be executed.  He clearly let them down.  It is essential that those engaged to appear in court on behalf of litigants have the requisite knowledge and skills to articulate their client’s case.  This is important both in respect of oral arguments and the drafting of court documents such as notices of appeal.  The court should not be left to conjecture what issues the appellant is placing before it for consideration.  It is the duty of the appellant to clearly and concisely state those issues.

In the circumstances the court upholds the respondent’s contention that the grounds of appeal stated by the appellants are too vague and general to constitute proper grounds of appeal.  The appeal must be struck off the roll.

It is accordingly ordered that;

The appeal be and is hereby struck off the roll.

The appellants shall bear the respondent’s costs.

Mufuka & Associates, respondent’s legal practitioners