Nelson Dzirutwe v Dairiboard Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/313/14
HELD AT HARARE 6TH MAY 2014
CASE NO
JUDGMENT LC/H/313/14
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IN THE LABOUR  COURT OF ZIMBABWE		JUDGMENT LC/H/313/14

HELD AT HARARE 6TH MAY 2014			CASE NO LC/H/691/10

& 6TH JUNE 2014

In the matter between:-

NELSON DZIRUTWE				Applicant

And

DAIRIBOARD ZIMBABWE			Respondent

Before The Honourable P Muzofa, Judge

For Applicant		A Chambati (Legal Practitioner)

For Respondent		A.K. Maguchu (Legal Practitioner)

MUZOFA, J:

This is an application for leave to appeal to the Supreme Court against a judgment of this Court which dismissed a preliminary point raised by the applicant.  The application is opposed.

The grounds of appeal are stated as follows:

That the Court a quo misdirected itself on a point of law by making a finding that the respondent’s appeal against the arbitrator’s factual findings was properly before the Court because the respondent had used the phrase “erred grossly” to describe the arbitrator’s findings in all its grounds of appeal.  Respondent  ought to have alleged and shown that there was gross misdirection on the facts as to amount to a misdirection on the law.

That the Court a quo misdirected itself by making a finding that the phrase “erred grossly” appeared in all of the respondent’s grounds appeal when the grounds of appeal showed that it did not appear as such.  This was a gross misdirection on the facts as to amount to a misdirection on the law by the Court a quo.

That the Court a quo  misdirected in itself on a point of law by failing to address the issue of whether the respondent had shown that there was a gross misdirection on the facts as to amount to a misdirection on the law.  The Court a quo erred grossly by merely satisfying itself with the fact that the purported grounds of appeal and failing to go further and consider whether indeed the respondent had shown that there was a gross misdirection on the facts as to amount to a misdirection on the law.

That the Court a quo misdirected itself on a point of law by failing to remit the issue of damages for loss of employment due to the appellant back to the arbitrator when the appellant had requested for same to be remitted back to the arbitrator for quantification and respondent had not opposed the request.

One of the considerations in such applications is the prospects of

success.  I propose to address ground of appeal number 4 first as it is clear.  The Court did not address the merits of the case, it made a ruling on the point in limine especially on the aspect whether the grounds of appeal raised a question of law.  I do not believe this ground of appeal has reasonable prospects of success.

I will address grounds of appeal 1, 2 and 3 concurrently as they are related.  It was submitted that the phrase forming the bedrock of this appeal “erred grossly” does not appear on all the grounds of appeal.  Clearly the phrase appears in all but one ground of appeal 5 addressing productivity bonus which the applicant conceded was supposed to be remitted for proper assessment.  As a result of the concession that ground of appeal ceased to be subject of the preliminary point.  This ground of appeal has no prospects of success.  Turning  to the use of the phrase “erred grossly”.  This court is of the view that the court should not be bogged down on words but the substance.  Where the error has been qualified it should be sufficient to bring the factual issues within the ambit of section 98 (10) of the Act.  However it would be in the interest of justice that the applicant is given an opportunity to have the issue decided upon by a superior court in light of the different decisions reached on the same phrase by the Labour Court see Zimbabwe Open University v Gideon Magaramombe LC/H/105/13.

Accordingly the following order is made.

The application for leave to appeal to the Supreme Court be and is hereby granted.

No order as to costs.

Chambati, Makaka & Makonese, applicant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners