Morgan Mugona and 159 Others v Town and Country

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/701/14
HELD IN HARARE, 10th OCTOBER, 2014
CASE NO. LC/H/982/13
AND 24th OCTOBER, 2014
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IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/701/14

HELD IN HARARE, 10th OCTOBER, 2014             	            CASE NO. LC/H/982/13

AND 24th OCTOBER, 2014

In the matter between

MORGAN MUGONA AND 159 OTHERS		Applicants

And

TOWN AND COUNTRY 					Respondent

Before The Honourable F.C. Maxwell:	Judge

For Applicants    :	Mr B. Chipadza (Legal Practitioner)

For Respondents :	Ms R. Makamure (Legal Practitioner)

MAXWELL J,

On 28th March 2014 this Court dismissed an appeal by Applicants having upheld points in limine raised by the Respondent. Applicants allege they were employed by Respondent on different dates. On 15th April 2010 Respondent entered into a franchise agreement in terms of which Applicants were temporarily transferred to Upridge Investments (Pvt) Ltd. Respondent disputed employing all the Applicants. On 30th September 2012 Arbitrator Lucas confirmed that the franchise agreement had been cancelled on 21st March 2012. Applicants alleged that their contracts of employment were terminated through a letter dated 28th January 2013. Respondent on the other hand alleged that the Applicants were employed by Upridge Investments (Pvt) Ltd. which was subsequently placed under provisional liquidation. As a result the liquidator became the Appellant’s employer. When the dispute had been referred for arbitration, the Arbitrator found in favour of the Respondent and dismissed the Applicants’ claim. The Applicants’ appealed to this Court which appeal was dismissed on the basis that no question of law arises from the Notice of Appeal. On 29th April 2014 Applicants filed this application for leave to appeal to the Supreme Court. Such an application is governed by Section 92F of the Labour Act [Cap 28:01] as well as Rule 36 of this Court’s Rules SI 59/2006. The application must satisfy the following among others;

It must be on a question of law.

It must be made within 30 days from the date of the decision sought to be appealed against.

There must be prospects of success on appeal.

Whilst the application was file timeously, I am not convinced that the intended appeal is on a question of law and that there are any prospects of success. The first ground of the Draft Notice and Grounds of Appeal refers to the fact that;

“… Issues of law were canvassed such as the failure by the arbitrator to interpret the franchise agreement ….”

Applicants are not making reference to what was contained in the grounds of appeal. The judgment of this Court is clear that the merits of the matter were not dealt with. The matter was dismissed on the contents of the grounds of appeal. I am therefore of the view that there is no prospects of this ground of appeal succeeding.

The second ground of the Draft Notice challenges this Court’s finding in relation to the then fourth ground of appeal. This Court indicated that the Arbitrator made a factual finding in relation to who was the Applicants’ employer. The propriety or lawfulness of the Applicants dismissal is dependent on that factual finding. I am not convinced that this Court erred in holding that the  factual issue was improperly raised on appeal.

The last ground of appeal on the Draft Notice challenges this Court’s finding in relation to the fifth ground of appeal. The judgment clearly states the view of the Court that;

the ground of appeal is vague;

Appellants (Applicants in this matter) did not substantiate the allegation either in heads of argument or in oral submissions;

there is no indication of which facts are being challenged;

Appellants submitted a sweeping statement which does not show which factual findings can be said to be irrational; and

Appellants did not demonstrate that the arbitrator would not have determined as he did had there been no misdirection.

The finding of the Court was that the ground of appeal fails for lack of particularity. I do not see any possibility of the Supreme Court finding otherwise.

Compliance with the provisions of Section 92F(2) should not be regarded as a mere formality. The party seeking leave must show among other things that he has prospects of success on appeal. As stated in the case of Fiona Chikurunhe and 234 Others v Zimbabwe Financial Holdings SC-10-08 leave is not granted simply because a party has sought such leave.

I am not convinced that Applicants have any prospects of success on appeal. The application therefore must fail with costs.

Leave to appeal to the Supreme Court is accordingly denied.

Lawman Chimuriwo Attorneys Law – Applicant’s legal practitioners

Kantor and Immerman – Respondent’s legal practitioners