New Ambassador Hotel v Tanaka Takawira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/27/2016
HARARE, 25 NOVEMBER 2015 &
22 JANUARY 2016
CASE NO LC/H/APP/952/2015
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/27/2016

HARARE, 25 NOVEMBER 2015 &			CASE NO LC/H/APP/952/2015

22 JANUARY 2016

In the matter between

NEW AMBASSADOR HOTEL					APPLICANT

Versus

TANAKA TAKAWIRA						RESPONDENT

Before the Honourable B S Chidziva J

For the Applicant	W L Chirongoma  (Legal Practitioner)

The Respondent in Person

CHIDZIVA J:

This is an application for leave to appeal to this court against the judgment of this court that was handed down on 10 July 2015. In its judgment this court upheld the decision of Honourable Arbitrator Grurupira that was issued on 15 August 2014.

The applicant’s grounds of this application are that:

There are good prospects of success before the Supreme Court in that:

This court erred at law when it made a finding that the applicant’s grounds of appeal were issues of fact and not law;

The court made a ruling on the merits of the matter despite the fact that the matter that had been referred to it was on procedural fairness of the dismissal;

The court made a factual finding of fact that was so irrational in its defiance of logic that no reasonable person applying themselves to the same set of facts would have reached a conclusion that:

The appellant did not have a clear cut procedure of how Trainee Manager Performance appraisals are done;

There was no evidence to support the charge preferred by the appellant against the respondent.

(d)	The court erred by failing to pay regard to the evidence before it that the applicant was clear that the appraisals were to be done upon the trainee completing attachment in every department that they had spent time in and that they were to be done within the employer’s premises.

(e)	The court a quo erred at law by awarding damages in lieu of reinstatement applicable to an employee and contract without limit of time despite the fact that the respondent was a graduate trainee on a contract without limit of time.

In response the respondent told the court that the application lacks prospects of success and that it should be dismissed with costs.

A number of cases have laid down factors to be followed when considering such applications. GOOSEN J in the case of Ian Cameron McLagga N v The State CC 70-2011 stated that:

“The test to be applied in determining whether or not leave to appeal should be granted is well settled. Leave to appeal will be granted where there is a reasonable possibility that another court may come to a different conclusion either on facts or law or both.”

McEWAN J in the case of Soric Properties Hillbrow (Pvt) Ltd & Anor v Van Rooyen 1981 (3) SA 650 also had this to say on this matter:

“… The court in proceedings of this nature is not called upon to enquire into the whole case, or to attempt to evaluate the prospects of success on appeal. Only if the court is satisfied that the appeal has minimal prospects of success or is hopeless then the court will take that factor into account and may draw an inference from it that the appeal was noted mala fide or for the purpose of delay.”

Upon considering the arguments that have been made by both parties before this court it is this court’s view that this is an arguable matter. Another court may come up with a different conclusion.

To that end therefore this court orders as follows:

The application be and is hereby granted.

There shall be no order as to costs.

C Kuhuni Attorneys, applicant’s legal practitioners