Moshen Manyimo v Zimbabwe Electricity Supply Authority Enterprises (Pvt) Ltd

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/154/25
HELD AT HARARE 12TH FEBRUARY 2025
CASE NO.LC/H/12/25
AND
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 12TH FEBRUARY 2025
AND

In the matter between

MOSHEN MANYIMO
APPLICANT

And

ZIMBABWE ELECTRICITY SUPPLY AUTHORITY
RESPONDENT
ENTERPRISES (PVT) LTD

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE, JUDGE.

FOR THE APPLICANT :B.NDAGURWA
With him P.Makuwaza
FOR THE RESPONDENT:MS T. NYAMIDZI
With her D. Moyo

MAKAMURE J:

[1]This is an application for leave to appeal against a judgment of this Court to the Supreme Court. It is opposed.

[2]The facts of this matter are that one Joyline Teverashe, a subordinate (the subordinate/complainant) of the applicant raised allegations of sexual harassment against him. The respondent set up a team to investigate those allegations. The following is what the team found out.


The specific allegations were that the applicant proposed love to the subordinate but that she turned him down and thereafter the relationship between the two became strained. As a result of the proposal having been turned down, it is further alleged that the applicant would withhold his authority where and when he was supposed to authorize processes like appraisal forms or travel and subsistence forms and threatened the subordinate that as long as she continued to resist his advances, there would be no progress in her various requests. A time came when the subordinate was supposed to travel to Nyanga together with others of her level. She struggled without success to get the necessary approvals from the applicant. The deadline for submission of the documents for that trip was approaching but the applicant had not processed the necessary paperwork. The subordinate therefore resorted to approaching someone senior to the applicant in order to get the necessary forms signed. On the day of departure, the subordinate was leaving for Nyanga when she was recalled by the applicant through her immediate supervisor for her to explain how she was leaving for Nyanga when he had not authorized her to go on that trip. The Workers Committee intervened on behalf of the subordinate and she was allowed to go. By the time that this was resolved the transport which she was supposed to use had already left. The subordinate had to travel to Nyanga on the following day.

At the conclusion of the investigations the team found that there was merit in the allegations. It recommended that misconduct charges be preferred against the applicant. He was charged with conduct inconsistent with the express and implied terms of his contract of employment in violation of paragraph 4(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 Statutory Instrument 15 of 2006. Disciplinary proceedings were conducted against him. He was convicted. He was penalized with dismissal. Aggrieved by that outcome he appealed to this Court. This Court dismissed the appeal. He now seeks leave to appeal to the Supreme Court against that judgment.


Preliminary Issues

[3] Before the application could be argued two preliminary issues were raised on behalf of the respondent. These are that i) the draft grounds of appeal do not raise points of law and (ii) the draft grounds are not clear and concise.

The following are the intended grounds of appeal and I quote:

‘1. The court a quo grossly erred and misdirected itself on facts which error amounts to an error in law in finding that the Appellant recalled Joyline Teverashe from the Nyanga trip in the absence of evidence justifying such a finding.

2. Assuming that the Appellant recalled Joyline Teverashe from the Nyanga trip, the court a quo grossly erred and misdirected itself on facts which error amounts to an error in law in failing to appreciate that the Appellant was not responsible for such a recall since it was Mr Masuku who gave the Appellant an impression that Joyline Teverashe was still at ZESA Enterprises when the alleged recall took place.

3. The court a quo grossly erred and misdirected itself on facts which error amounts to an error in law in finding that there appears to be no reason for Joyline Teverashe to fabricate a case of sexual harassment against the Appellant in light of strong and reasonable grounds to believe that the allegation of sexual harassment was fabricated. In particular, the Nyanga trip recall, the issue of the trip invoices and travel and subsistence forms, the issue of appraisal forms, the office rationalisation, and the issue of additional work among others created bad blood between the Applicant and Joyline Teverashe resulting in her fabricating a case of sexual harassment against the Appellant.’

[4] It was argued on behalf of the respondent that the grounds of appeal particularly grounds 2 and 3 are not clear and concise. It was further argued that the grounds are a mere regurgitation of what happened. It was further argued that the grounds are fatally defective. It was submitted that the issues being raised are not readily ascertainable as required by authorities. For these reasons it was submitted that grounds 2 and 3 should be struck out.

[5] In response it was argued on behalf of the applicant that all the grounds raise questions of law. It was argued further that where factual findings are unreasonable, they amount to a question or questions of law. It was submitted that under the circumstances, grounds 2 and 3 are clear and concise as required by law. It was submitted that with respect to ground 2 that the applicant could not be responsible for recalling Joyline. It was argued with respect to ground 3 that it is clear and concise and the issues for determination are easily ascertainable. It was further argued that what is before the court is an application for leave to appeal and not an appeal and for that reason it is not within this Court’s jurisdiction to strike out grounds 2 and 3 which it was invited to do by the respondent.

Counsel for both parties referred the Court to authorities for which the Court is grateful.

[6] In Tendai Bonde v National Foods Limited & Ors SC 11/21 the Supreme Court quoted with approval the case of Chikura N.O. & Anor v Al Sham’s Global BVI Limited SC 17/17 where the same court stated as follows:

“It is not for the Court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of ‘grounds of appeal’ in order to determine the real issues for determination by the Court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. That is not so in the instant matter. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this Court.”


I respectfully associate myself with the above sentiments. As correctly argued on behalf of the respondent, grounds 2 and 3 are a mere regurgitation of the allegations. Each one of them is not clear and concise. It is not for the court to go through the grounds in search of valid grounds. In the result I agree that the two grounds do not meet the requirements set by authorities and the Labour Act Chapter 28:01. The preliminary issues have merit. They are upheld.

This leaves ground 1 as the only valid ground of appeal. While therefore I find merit in the preliminary issues, it is necessary to consider merits of the application.

**Merits.**

[7] The requirements to be met in an application for leave to appeal include the following.

(i) The grounds of appeal raise points of law.

(ii) There are prospects of success on appeal.

S92F(1) of the Labour Act Chapter 28:01(the Act) provides that:

'(1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.'

[8] The applicant attacks the findings of the Court arguing that the Court misdirected itself in making the findings that it did. The attack is on how the Court assessed the evidence which is on record. The submission on behalf of the applicant is that a different court faced with the same evidence will come to a different conclusion.

[9] The position on behalf of the respondent is that the applicant did not raise points of law. In the circumstances it was submitted that there are no prospects of success on appeal and the application should be dismissed with costs on the punitive scale.


[10] After considering submissions by parties and the record, it appears to me that the applicant, as correctly pointed out by the respondent, is merely regurgitating what happened. In **Tendai Bonde v National Foods Limited & Ors** (above) the Supreme Court stated that: ‘Mere regurgitation of facts as has been done by the applicant… will render the grounds of appeal defective.’

I have already indicated that grounds 2 and 3 are not concise and precise. The first ground is still a regurgitation of what happened. It does not raise a question of law as has been submitted on behalf of the applicant. The words ‘which error amounts to an error in law’ does not make the issue raised in this ground a point of law. In the words of Garwe JA (as he then was): ‘The words “on a question of law” have been added simply to give the impression that what is being raised is a question of law …’ See **Sable Chemicals Industries Limited v David Peter Easterbrook SC18/10.** In the result there is no merit in ground 1. What this means is that there is no merit in all the intended grounds of appeal. This also means that there are no prospects of success on appeal.

[11] I must say that I still hold the view that the applicant was properly convicted and this Court properly dismissed his appeal. A reading of the applicant’s heads of argument seems to suggest that the recalling of the complainant /subordinate by the applicant when she was going to Nyanga, and the other issues which include the failure by the applicant to process complainant’s various papers, led her into fabricating a case of sexual harassment against the applicant. This is not so. The facts as the record shows are that allegations of sexual harassment were made against the applicant and then the other issues followed. The failure by the applicant to process the subordinate’s various papers was perceived by her as punishment for resisting his advances especially considering that the record shows that he made these threats to her. This is why the applicant ended up facing allegations of misconduct.


[12] I am under the circumstances, persuaded to agree with the respondent that the intended grounds of appeal have no merit and a different court faced with the same facts will not find differently.

In view of the foregoing it is ordered that:

The application for leave to appeal be and is hereby dismissed with costs.

MAKUWAZA AND GWAMANDA ATTORNEYS, APPLICANT’ LEGAL PRACTITIONERS.

MUVINGI AND MACHAYA, RESPONDENT’S LEGAL PRACTITIONERS.
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