Pauline Chikamba v Ellen Nyamanhindi N.O. and Civil Aviation Authority of Zimbabwe (CAAZ)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/301/25
HELD AT HARARE 15 JULY 2025
CASE NO. LC/H/430/25
AND 20 AUGUST 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 15 JULY 2025

AND 20 AUGUST 2025

JUDGEMENT NO. LC/H/301/25 CASE NO. LC/H/430/25

IN THE MATTER BETWEEN:

PAULINE CHIKAMBA	APPLICANT

AND

ELLEN NYAMANHINDI N.O.	FIRST RESPONDENT CIVIL AVIATION AUTHORITY

OF ZIMBABWE (CAAZ)	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant-	Ms. E. Bhasera

For Second Respondent	Mr. O. Kondongwe No Appearance for First Respondent

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act (Chapter 28:01) as read with Rule 43 of the Labour Court Rules, 2017.

It is trite that where the intention is to approach the Supreme Court on appeal, the first recourse is to section 92F (2) of the Act. The grounds of appeal must raise questions of law. The second hurdle to be surmounted is whether there are prospects of success on appeal.

APPLICATION FOR POSTPONEMENT

At the commencement of the proceedings, Ms. Bhasera stated that she had an application to make. She submitted that Mr. Gama who was supposed to be appearing on behalf of the Applicant was attending to another matter before the High Court. She stated that she was not aware as to when Mr. Gama became aware of the commitment in the High Court. Asked by the Court whether she had a document showing that Mr. Gama was indeed in the High Court, she stated that she did not have any. She stated that the only document she had was the one showing that Mr., Gama was due

to appear in the Supreme Court at 12.00 hours. She also could not explain why Mr. Gama had not written to the Registrar about his predicament. Mr. Kondongwe stated that he understood the predicament in which Mr. Gama was in and would abode by the decision of the Court seeing that the discretion lay with the Court.

In Stonewell Searches (Pvt) Ltd v Stone Holdings (Pvt) Ltd and 2 Others SC 22/21, it was held as follows:

“Over and above that, the mere fact that a party’s counsel of choice is unavailable is not good a ground upon which to grant a postponement. This position was laid out in D’Anos v Heylon (Pty) Ltd 1950 (1) SA 324 C at 335-336 where the court held that:

‘the non-availability of counsel cannot be allowed to thwart the bringing before the court of the matter in issue. In all but the rarest of cases suitable counsel will be available. This is not the convenience of counsel; it is the reasonable convenience of the parties-and by that I mean both parties-and the requirement of going through the court’s work which must be the dominant consideration. The availability of counsel is a subsidiary consideration. A party’s pre-dilection for a particular counsel to take his case can, in my view, seldom, if indeed ever, be regarded as a decisive objection to a date of set-down which is in all respects reasonable and acceptable to both parties.’”

In this case, it appears that Mr. Gama had ‘booked’ himself in three courts. He was supposed to appear in the Supreme Court at 12.00 hours, the High Court, as stated by Ms. Bhasera and in the Labour Court as the matter was set down for 10.00 hours on the same date. Mr. Gama had not had the courtesy to write to the Registrar about his predicament. It appears that he was of the view that the postponement was there for the taking. Lack of diligence and tardiness in handling of a legal practitioner’s affairs should not be brought to the doorsteps of the courthouse. The application for postponement was accordingly dismissed.

SUBMISSIONS ON THE MERITS

Applicant’s Submissions

Ms. Bhasera stated that she was going tom abide by the documents filed of record. The pertinent portions of the Founding Affidavit read as follows:

“28. The Disciplinary Committee sat to hear the allegations made against me but, after some postponement and arguments, the Workers Committee decided not to take part in the hearing because the outcome was pre-determined. Indeed, it was, the request by Mrs. Paradza for the Investigation Committee to re-sit and alter its decision being proof of this and a tip of the iceberg.

As a result, CAAZ illegally referred the matter to the 1st respondent on 6 February 2024 before the thirty-day period referred to in section 101 (6) of the Labour Act had expired.

The 1st respondent unlawfully agreed to hear the matter. Despite our objection to her exercise of jurisdiction, the 1st respondent remained seized with the matter from 6th February 2024 up to the date of her decision. She did not decline jurisdiction.

The 2nd respondent wrote a letter to the 1st respondent on 20 February 2024 purporting to re-submit the matter to her despite the fact that she was already seized with it and had not declined jurisdiction. She assumed jurisdiction and only postponed the hearing when we objected to her exercise of jurisdiction.

35. My first ground of appeal relates to the Designated Agent’s jurisdiction to hear the matter in terms of section 63 (3a) and (3b) of the Labour Act.

39. The issue of jurisdiction is a point of law which can be raised at any stage of the proceedings. The courts have ruled repeatedly that the point of law relating to jurisdiction is a fundamental point which no court of law can ignore.

42. She asked for written submissions and determined the matter on the basis of the papers without my consent. The hearing was clearly contrary to the law and to principles of natural justice.

54. It is my humble submission that in finding that I had declined to provide the required information, the court grossly misdirected itself as there was no evidence supporting the finding. To make a finding which is not based on any evidence is to make an error on a question of law.

56. What needs to be done is for the matter to be determined in terms of section 93 of the Labour Act, and for an oral hearing to be held in accordance with the applicable code of conduct.”

The prospective grounds of appeal are eight (8) in number and are formulated as follows:

The court a quo erred and misdirected itself in not finding that the Designated Agenet had no jurisdiction to hear the respondent’s allegations, find the appellant guilty of misconduct and order the dismissal of the appellant as section 101 (6) of the Labour Act (Chapter 28:01) in terms of which the matter was referred to her did not give her such powers.

The court a quo further erred in not finding that the proceedings of the Designated Agenet were unlawful and contrary to section 9 of the applicable code of conduct, namely the Collective Bargaining Agreement: Air Transport Industry (Code of Conduct), S.I. 81 of 2017 which required an oral hearing to be held in the presence of the appellant.

At any rate, the court a quo erred in not finding that the 2nd respondent’s allegations could not be determined in the absence of oral and documentary evidence given by the parties and their respective witnesses as they raised numerous material disputes of fact which could not be resolved on the papers.

The court a quo also grossly misdirected itself in finding that the appellant had wilfully obeyed (?) a lawful instruction to host and entertain a technician from Liquid Intelligent Technologies (LIT) when the exact nature, content, date, source and lawfulness of the instruction were unknown to the parties and the court itself and there was absolutely no proof of wilful disobedience.

Furthermore, the court a quo erred and misdirected itself in not finding that the allegations relating to the instruction given on 16 May 2023 were not properly before both the Designated Agent and it (the Court a quo) as they were not part of the allegations made in the notification to attend a hearing dated 15 January 2024.

By the same token, the court a quo erred and misdirected itself in finding that an appellant declined to furnish auditors with information when there was absolutely no evidence supporting both that finding and the finding that she wilfully disobeyed a lawful instruction to furnish the information.

The court a quo grossly erred and misdirected itself in finding that pictures of dangling cables which were taken by the 2nd respondent when the appellant was unwell and on sick leave showed gross misconduct when the pictures related to an unfinished task whose completion was delayed by illness.

The court a quo also grossly erred and misdirected itself in finding that the 2nd respondent’s instruction of 16 May 2023 had not been obeyed and in suggesting that the alleged failure to perform and complete the task was wilful, deliberate and intentional as there was absolutely no evidence supporting the finding.

Second Respondent’s Submissions

Mr. Kondongwe stated that he abided by the documents filed of record. He submitted that the documents raise serious objections against the application for leave to appeal where the Applicant seeks to raise new issues which are basically procedural in nature. He added that there were no prospects of success on appeal having regard to the purported grounds for leave to appeal file by the Applicant. The Opposing Affidavit raises the following averments in relevant portions:

“5. Of procedural objections, I note that the applicant ventures to argue and seeks leave mainly on grounds purportedly that the designated agent had no authority or jurisdiction to conduct a disciplinary hearing and that there ought to have been an oral hearing before the designated agent made her determination. Both these issues are completely new. They were never brought up min the appeal before the Labour Court.

6. In the interests of finality, one cannot conjure up a totally new case on appeal under the pretence that it is an issue of law. It is both improper and unfair for the applicant to try to impeach the Labour Court judgment on issues which were not presented in the appeal. An appeal must be confined to the record. In this instance the new issues raised are not issues of law qualifying to be raised ‘at any time’

As for the new allegation that an oral hearing should have been held, the respondent respectfully makes the point that an oral hearing under the code is not mandatory. The code merely provides a right or the option of an oral which the parties are entitled to exercise or waive if they so wish.

In this instance the record confirms that the parties agreed that the matter be determined on their written submissions. They agreed to rely on the detailed investigation reports and documentary evidence such as were provided to the designated agent. It is for this reason that all earlier representatives of the applicant have not demanded an oral hearing. Applicant cannot blow hot and cold. Rights which have been waived cannot be revived as an afterthought on appeal.

Overall, it will be noted from the record that the parties agreed on the procedure before the disciplinary proceedings commenced.

15. As of additional points, respondent maintains that there is nothing inn the appeal which was before this honourable court, and in the proposed or draft appeal to the Supreme Court which constitutes appealable issues of law. There is nothing in the proposed grounds of appeal which demonstrates that the judgment of this honourable court was so grossly unreasonable or irrational as to justify the conclusion that this honourable court had ‘taken leave of its senses’. Findings of fact cannot be disturbed by the Supreme Court in the circumstances.”

ANALYSIS

An application for leave to appeal to the Supreme Court is in terms of section 92 F (2) of the Labour Act (Chapter 28:01). The requirement in terms of that section is that the appeal should raise points of law. The second point is that there should be prospects of success on appeal. This principle was buttressed in Fiona Chikurunhe and Others v Zimbabwe Financial Holdings SC 10/08 where GARWE JA (as he then was) had this to say:

“One further matter calls for comment and that is the suggestion by Mr. Biti that an application of this matter should be routinely granted by this Court since the restriction on the right of appeal imposed by s 92 is a derogation from a party’s constitutional right of appeal. I do not agree with this submission. Complying with the provision of s 92 F (3) should not be regarded as mere formality. The party seeking leave must show inter alia that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

In Attorney General v Howman 1988 (2) ZLR 402 (SC), it was held as follows:

“The principles justifying interference by an appellate Court with the exercise of an original discretion are firmly entrenched. If the decision has been exercised on judicial grounds and for sound reason, that is, without caprice or bias or the application of wrong principles, an

appellate Court will not interfere and substitute its own decision. It is not enough that it considers, if it had been in the position of the lower court, that it would have taken a different course.”

LORD DIPLOCK, in Council of the Civil Service Unions and Ors v Minister of the Civil Service [1984] 3 All ER 935, had this to say at 951:

“By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”

In assisting courts to handle the many matters that litigants often pursue to be placed before the Supreme Court, that Court has handed down precedents which should always guide the courts in making determinations as to whether the matters are meritorious and should be placed before the Supreme Court. In Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20, MAKARAU JA (as she then was) had this to say at page 6 of the cyclostyled judgment:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

Having laid down the general principles guiding the acceptance of appeals before the Supreme Court, I will proceed to deal with the prospective grounds of appeal.

As averred by the Second Respondent, the first three grounds of appeal raise novel issues which were not placed before the Court a quo. The first two grounds of appeal allege the error made by the Court a quo in not finding that the Designated Agent did not have jurisdiction to deal with the matter. The Applicant placed seven grounds of appeal and in none of them was any allegation of lack of jurisdiction on the part of the Designated Agent made. The same applies to the third ground of appeal. It is trite that an appellate court is disabled from entertaining an issue which was not placed before the tribunal a quo. This issue was reinforced in Priscah Mupfumira v State SC 71/19. It was stated as follows:

“It is settled that an appeal must always be premised on the determination of the court a quo it being a logical supposition that the grounds thereof would seek to impugn the

decision being appealed against. Grounds of appeal ought not to be divorced from the decision appealed against otherwise the appeal is deemed irregular.

In casu, the determination of the Magistrates Court was centred specifically on the validity of the certificate of the Prosecutor General and its effect as to the jurisdictional limits to determine the question of bail. As a result, the appeal by the appellant to the High Court ought to have raised issues that were limited to the validity of that certificate and the refusal of jurisdiction consequent thereto.”

Applicant intends the Supreme Court to act as a court of instance and proceed to determine the issue of whether the Designated Agent had jurisdiction to preside over the matter when such issues were not placed before the Court a quo. This is what MAKARAU JA (as she then was) preached against in the Zimbabwe Institute of Management case supra, where the Learned Judge cautioned that the Supreme Court cannot be requested to come up with a fresh decision on the matter. The first two prospective grounds of appeal are improperly placed.

In the third ground of appeal, it was averred that the Court a quo erred in not finding that the Designated Agent had proceeded to deal with the matter without calling evidence. A reading of the decision of the Designated Agent shows that the parties had agreed to file documents and the tribunal would proceed to determine the matter based on those documents. Evidently, the Applicant was bound to have raised this issue inn the pleadings in the Court a quo that the statement by the Designated Agent was a misrepresentation of the facts. This was not done, and the Applicant intends to have such an issue placed before the Supreme Court for determination. It falls into the same category as the first two grounds of appeal.

The fourth ground of appeal suffers from two maladies. The first is that it does not raise any point of law as required in terms of section 92 F (2) of the Act. The second is that it does not refer to the decision of the Court a quo in this respect. The Court referred to the findings made by the Designated Agent which is reflected at page 23 of the record. The Applicant does not point to any irrationality about the findings of both the Designated Agent and the Court. The ground of appeal has no prospects of success.

The last four grounds of appeal suffer from the defect outlined above. They do not raise any point of law. They show a general disgruntlement with the decision of the Court without identifying any point of law which the Supreme Court should be called upon to decide. In ZINWA v Mwoyounotsva SC 28/15, it was held as follows:

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in nits defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.”

The same principle was emphasised in Friendship v Cargo Carriers Ltd SC 1/13, at page 6 where the court held that:

“It is now settled that an appellate court will not interfere with the exercise of discretionary power by a lower court unless it is shown that the lower court committed such irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision.”

It therefore becomes clear that an applicant for leave to appeal has to demonstrate the extent of the misdirection or irrationality. Mere averments do not suffice. Reasonable prospects of success should be shown to exist. In Essop v S, [2016] SASCA 114, that court, in defining prospects of success held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. Inn order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

In this category of precedent, the icing on the cake was provided by GARWE JA (as he then was) in Fiona Chikurunhe and Others v Zimbabwe Financial Holdings SC 10/08 where the Learned Judge had this to say:

“One further matter calls for comment and that is the suggestion by Mr. Biti that an application of this matter should be routinely granted by this Court since the restriction on the right of appeal imposed by s 92 is a derogation from a party’s constitutional right to appeal. I do not agree with this submission. Complying with the provision of s 92 F (3) should not regarded as mere formality. The party seeking leave must show inter alia that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

Further, MAKARAU JA (as she then was) weighed in thus in Thando Ncube v Fidelity Printers and Refineries (Pvt) Ltd SC 62/20:

“In an application for leave to appeal, the Judge considering the application acts as a gatekeeper. The role of the judge is to keep out appeals with no prospects of success.”

It is therefore my considered view that there are no prospects of success on appeal.

The following order is appropriate.

The application for leave to appeal to the Supreme Court, being devoid of merit, is hereby dismissed.

Applicant to meet Second Respondent’s costs.

Gama and Partners-	Applicant’s legal practitioners

DMH Legal Practitioners-	Second Respondent’s legal practitioners.