Madzura Mambo v Air Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/676/14
HARARE ON 16th SEPTEMBER, 2014
CASE NO. LC/H/145/14
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/676/14
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IN THE LABOUR COURT OF ZIMBABWE	                               JUDGMENT NO. LC/H/676/14

HARARE ON 16th SEPTEMBER, 2014		                         CASE NO. LC/H/145/14

AND 10th OCTOBER, 2014

In the matter between

MADZURA MAMBO			–	APPELLANT

And

AIR ZIMBABWE (PVT) LTD.		-	RESPONDENT

Before The Honourable P. Muzofa J.

For Appellant :	Mr C. Mucheche (Legal Practitioner)

For Respondent:	Ms G.F. Dzitiro (Legal Practitioner)

MUZOFA J,

The respondent raised a point in limine that the grounds of appeal do not raise a question of law as contemplated by Section 98 (10) of the Labour Act [Cap 28:01] and as defined in the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217. The grounds of appeal relied upon by the appellant are as follows:-

“1. The arbitrator grossly erred and seriously misdirected herself on a question of law in

making a finding that the respondent shall retire the appellant according to the Air Zimbabwe Pension Rules of 2007.

The arbitrator erred on a question of law in not finding as she should have done that legally and contractually, the retirement age applicable to the appellant is 65 years as per the subsisting pension rules at the time of conclusion of the contract of the contract of employment and the respondent cannot unilaterally change such a material condition of employment without cogent consent from the appellant.”

Respondent averred that the first ground of appeal raises the issue of the application of the pension regulations. The background of this case is that appellant was employed by the respondent. At the time the parties contracted there subsisted a pension scheme administered by Old Mutual known as Air Zimbabwe Rules of the Pension and Life Assurance Plan.

According to the respondent the pension scheme was later changed with the knowledge and consent of the employees including appellant to Air Zimbabwe Pension Rules of 2007 administered by Cormaton. The initial pension scheme retired male employees on attainment of the age of sixty-five (65) years and the latter retired male employees at the age of sixty (60) years. One of the issues the arbitrator was called upon to determine was whether the respondent correctly retired the respondent at the age of sixty (60) years applying the 2007 pension scheme. The arbitrator made a finding that the 2007 pension scheme applied to the appellant and therefore was properly retired.

Before this Court the germane issue is still which pension scheme applied to the appellant. Respondent submitted that the arbitrator considered the facts before him and made a factual finding. The issue does not raise a question of law applying the definitions in the Muzuva case (supra). Appellant argued that the issue brought to the fore the interpretation of the initial pension scheme and whether it gave appellants vested rights that cannot be taken away without appellant’s consent. On presentation of this submission by the appellant, respondent objected to its inclusion on the basis that the interpretation of the initial pension scheme was not an issue before the arbitrator. The Court was referred to the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) @ page 157 where the Court had this to say on when an issue of law be raised;

“… a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed:”

In casu the grounds of appeal requires an examination of the circumstances surrounding the two pension schemes which really are factual considerations. In addition the Court would be required to analyze the rights and obligations arising out of the pension schemes and consider whether the initial scheme was part of the appellant’s contract of employment. Thereafter considerations have to be made on whether the subsequent shift to the 2007 Pension Scheme was with the consent of the appellants. In my view the effect of what is before the Court is to decide on what is the position of the law in such regard. I believe the grounds of appeal raise a question of law. Having made that finding the respondent’s objection as indicated earlier in this judgment falls away

Accordingly the following order is made:

The point in limine be and is hereby dismissed with no order as to costs.

Matsikidze and Mucheche – Appellant’s legal practitioners

Mutumbwa, Mugabe and Partners – Respondent’s legal practitioners