Nickson BUSU V Fidelity LIFE Assurance

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/13/2016
HARARE, 19 NOVEMBER 2015
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/13/2016

HARARE, 19 NOVEMBER 2015		              CASE NO. LC/H/606/15

AND 22 JANUARY, 2016

In the matter between:-

NICKSON BUSU                	   	Appellant

And

FIDELITY LIFE ASSURANCE		Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Ms L. Shambamuto (Legal Practitioner)

For Respondent		Mr S.V. Hwacha (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of Honourable S. Mugumisi that was handed down on 25 June 2015.  The award is couched as follows;

“In the result, it is my finding that the 1st respondent had no jurisdiction to discipline the applicant for the reasons I have already given above.  It remains the 2nd respondent’s prerogative to proceed or not to proceed to discipline the applicant through the right Code of Conduct which could be the national employment Code of conduct, if it does not have one registered in its own name.

This will be my order.”

The appellant in his grounds of appeal stated that,

The arbitrator erred on a question of law by failing to determine whether the appellant was unfairly dismissed.

The arbitrator erred factually which misdirection amounts to a question of law by only determining one term of reference and not proceeding to determine whether appellant was unfairly dismissed as 2nd respondent relied on the 1st respondent’s illegal disciplinary hearing.

The arbitrator erred on a question of law by failing to dispose of the terms of reference for arbitration for which he was seized with.

Appellant therefore prayed that the award be set aside.

In response the respondent told the court that;

The appeal is not signed by professor Madhuku in whose name it was purportedly filed.

The issues raised are issues of review and not matter for an appeal.

In any event the arbitrator found correctly not to deal with the dismissal because no appeal was lodged against the dismissal by the second respondent and accordingly no Order could be made against it.

Further the arbitrator found correctly and it has not been challenged that the appellant admitted to the acts of misconduct and that he did not improve despite being given time to correct his failings.

On these grounds the respondent prayed that the appeal be dismissed with costs.

When the parties appeared before me on 19 November 2015 Mr Hwacha who was representing the respondent indicated that he was abandoning the first point in limine to the effect that the appeal was not signed by professor Madhuku.  I then asked the parties to address me on the 2nd point in limine where the respondent showed that the grounds of appeal were not points of law but procedural issues which required  review.

Mr Hwacha then submitted that the following issues raised by the appellant were points of review and not questions of law.

That the arbitrator failed to determine unfair dismissal.

That the arbitrator failed to determine issues of the terms of reference.

The arbitrator failed to dispose of all terms of reference.

He submitted that the rules are clear that where procedure is attacked the correct procedure is review.  An appeal is lodged on issues of merit.

Mr Shambamuto who represented the appellant submitted that both parties are in agreement that there was a gross error by the arbitrator.  She told the court that there are no reviewable grounds in the notice of appeal and that the grounds raise critical issues of appeal:  The respondent therefore prayed for the dismissal of the point in limine.

The issue to be decided in this matter is whether the grounds of appeal address merits of the case or procedural matters.

Herboseen & Van Winseen Civil Protection of the Supreme Court of South Africa 4th edition  page 932 explained the difference between an appeal and review as follows;

“The reason for bringing proceedings under review or appeal is usually the same to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where however the real grievance is against the method of the trial, it is proper to bring the case on review.  The first destination depends, therefore on whether it is the result only or rather the method of trial which is to be attacked.  Nationally the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The giving of a judgment not justified by the evidence would be a matter of appeal and not a review upon this test.  The essential question in review proceeding is not the correctness of the decision under review but its validity.”

Furthermore in the case of Nduna v Ndhlovu HB 08/04 it was held that;

“An appeal procedure cannot be used to remedy gross irregularity in the proceedings.  Review of the proceedings of the maintenance of the court a quo would have been the correct procedure.  Even then irregularity is not in itself a ground for setting aside a decision on review, the irregularity must be of such a nature that is calculated to cause prejudice....”

Professor Feltoe in his book “A Guide to Zimbabwean Administrative Law 3rd edition 1998 at page 14 also states that

“the main differences between the two remedies is that in an appeal, what is in question is the substantive correctness of the original decision whereas on review the court is not delving into the substantive correctness of the decision but only determining whether there was any action which is reviewable because it was ultravires powers allocated to the Tribunal.”

In this matter the appellant has complained about how the matter was dealt with.  The grounds of appeal are not dealing with the merits of the case but procedural matters.  In view of this therefore this matter should have been brought before this court on review and not appeal.

It also follows that the grounds of appeal lack merit.

Accordingly it is ordered that

The point in limine be and is hereby upheld.

Appellant shall pay costs.

Matsikidze and Mucheche, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners