Margaret Mukonza v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/814/2016
HARARE, 20 OCTOBER 2016 &
CASE NO LC/H/APP/563/2016
30 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/814/2016

HARARE, 20 OCTOBER 2016 &				CASE NO LC/H/APP/563/2016

30 DECEMBER 2016

In the matter between

MARGARET MUKONZA						APPLICANT

Versus

CITY OF HARARE							RESPONDENT

Before the Honourable Muzofa J

The Applicant in Person

For the Respondent	B Furidzo (Legal Practitioner)

MUZOFA J:

This is an application for leave to appeal made in terms of section 92 F (1) and (2) of the Labour Act [Chapter 28:01] (“the Act”).

The respondent raised a point in limine that the intended grounds of appeal do not raise any questions of law. Before the court delves into the merits of this case, it is incumbent that it addresses the preliminary issue first.

The respondent submitted that, the grounds of appeal raise factual issues. It was not shown that there was a gross misdirection on the facts.

The law as to what constitutes a question of law is now settled. See National Foods Limited v Stewart Mugadza SC 105-95 and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

A question of law has been defined in three senses firstly it is a question that the law has authoritatively answered. The second sense is that it is a question as to what the law is. The third sense relates to criminal cases which is any issue that the judge and not the jury has to determine.

A question of fact can be a question of law where there is a gross misdirection on the facts. The court in Reserve Bank of Zimbabwe v Corrine Granger & Anor SC 34-01 succinctly set out the essence of a misdirection on the facts as follows:

“An appeal to this court is based on record if it is related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence.”

Having set out the hall mark of a question of law, I will analyse the grounds of appeal as set out by the applicant. I must say though at the outset that the applicant did not make any meaningful responses in both her oral and written submissions.

The first ground of appeal is set out as follows:

“The court erred by accepting the matter which raised procedural irregularities as an appeal instead of dismissing it as procedurally (sic). The respondent ought (sic) have applied for review.”

The issue raised for consideration is whether the court erred by hearing an appeal raising procedural issues. The matter should have been brought by way of review.

The court was not seized with this issue and no determination was made. The applicant cannot therefore impugn this court on that basis. A ground of appeal cannot emanate from a matter that the court was not asked to deal with.

In any event the real import of the respondent’s grounds of appeal did not raise any procedural issues.

The ground of appeal clearly is improperly before the court and is struck off.

The second ground of appeal impugns the court’s finding that the respondent was barred by the Minister’s circular from promoting the applicant.

The ground of appeal raises a question of fact. The question is whether on the facts that were before the court there was a gross misdirection. The court accepted the council resolution of 26 January 2010 that employees who acted in vacant higher positions for long periods be appointed to those substantive positions.

The court also made a factual finding that the applicant acted in the position of a public convenience cleaner for twelve months. It was also a fact that the applicant had acted for a maximum period in terms of section 18 (d)(2)(b) of statutory instrument 18 of 2007.

However a ministerial directive was generated on 29 September 2010 by the responsible Ministry. It had directions that no local authority was to employ any staff member.

The court found that the respondent could not possibly effect any promotion or appointment in light of that ministerial directive.

To that extent even if the applicant was legible for appointment, it could only be done after the upliftment of the ministerial directive.

I find no gross misdirection in that finding, the facts of the matter compellingly lead to the conclusion reached by the court.

The second ground of appeal raises no question of law since there was no gross misdirection.

The third ground of appeal relates to the court’s finding that the applicant only worked in an acting capacity for the period August 2010 to January 2011. This ground of appeal is also raised as ground number six. I will address the two grounds of appeal simultaneously.

The court considered the official documents appointing the applicant to act in the position of a pubic convenience cleaner produced before the arbitrator.

The applicant’s submission is that the court should have considered the document on page 15 of the record as showing that she also worked in an acting capacity in August 1999.

Firstly the said document is a purported job description which was actually disowned by the respondent. It does not even show who the author is, its authenticity becomes questionable.

Secondly the document does not appoint the applicant to work in any acting capacity.

Relying on the said document would have been a gross misdirection. The evidence placed before the arbitrator showed that the applicant acted as found by the court.

There was no gross misdirection on the facts. The third ground of appeal is therefore struck off.

The fourth ground of appeal is related to the third ground of appeal, it raises issue on the period wherein the applicant worked in a higher grade.

As already stated, the court relied on the documentary evidence produced to come up with the period that the applicant worked in a higher grade. It was for the applicant to prove that she had been verbally appointed. She failed to do so.

Accordingly the third and sixth grounds of appeal are struck off for failure to raise a question of law for determination.

The fourth ground of appeal does not raise any issue, it is a narration of the applicant’s interpretation of the minister’s directive. The statement is a misrepresentation of the facts. The minister’s directive did not state the date it would expire.

There being no issue for determination and therefore no gross misdirection on the facts, the ground of appeal is struck off.

The seventh ground of appeal does not raise a determinable issue, it is just a narration of events. It is accordingly struck off.

From the foregoing clearly the applicant’s case falls at this preliminary stage. All the grounds of appeal do not raise questions of law.

Accordingly the preliminary point be and is hereby upheld.

All the grounds of appeal be and are hereby struck off.

The application for leave to appeal be and is hereby struck off.

Kanokanga & Partners, respondent’s legal practitioners