Peter Masuka v Cold Storage Company & Anor

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE
JUDGMENT NO. LC/H/61/25
CASE NO. LC/H/1125/24
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 14 JANUARY 2025

AND 24 FEBRUARY 2025

JUDGMENT NO. LC/H/61/25

CASE NO. LC/H/1125/24

IN THE MATTER BETWEEN:-

PETER MASUKA

AND

COLD STORAGE COMPANY

CLAUDIOUS NHEMWA N.O.

APPLICANT

FIRST RESPONDENT

SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

Applicant

For Respondents

In Person

Mr. K. Chivhuna

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) and Rule 43 of the Labour Court Rules, 2017.

On 17 October 2024, this Court rendered an Ex Tempore Decision in whichApplicant’s matter was struck off the roll for being improperly before the Court. Applicant is dissatisfied with that decision and intends to approach the Supreme Court for relief. I make the observation that despite the Ex Tempore Decision being just a page long, Applicant has filed submissions in a document encompassing some nineteen (19) pages. Applicant did not request for detailed reasons after the rendering of that judgment. I make this observation because I am of the view that reasons assist the court of appeal decide on the matter in a more enlightened way. The following was stated in Mphahlele v First National Bank of South Africa Ltd 1999 (2) Sa 667 (CC):

Furnishing reasons-

“explains to the parties, and to the public at large which has an interest in courts being open and transparent, why a caseis decided as itis. It is adiscipline which curbs arbitrary judicial decisions. Then, too, its essential for the appeal process, enabling the losing party to take an informed decision as to whether or not to appeal or, where necessary, seek leave to

appeal. It assists the Appeal Court to decide whether or not the order of the lower court is correct. And finally, it provides guidance to the public in respect of similar matters.”

It has been stated that there is no express statutory provision requiring judges who have given judgment ex tempore to furnish written reasons.

The prospective grounds of appeal cover at least three (3) full pages which cannot be reproduced in this judgment. They do not follow a recognized format and are somewhat mixed with submissions from previous matters unrelated to the present matter.

Preliminary Issues

Mr. Chivhuna stated that he had preliminary points to raise. He submitted that the first was that the matter struck off the roll on 17 October 2024 as the Applicant had not tendered the Court Order which facilitated the application for quantification of damages. He added that Applicant was supposed to have applied for reinstatement after attending to the defect and he had not done so. He argued that a matter that had been struck off the roll was no longer before the Court and cited the cases of Matanhire v BP & Shell Marketing 2004 (2) ZLR 147 and S v Ncube 1990 (2) ZLR 303 (S). In this regard, Mr. Chivhuna stated that Applicant should have utilized Rule 36 of the Labour Rules.

The second point in limine raised by Mr. Chivhuna was that the grounds of appeal did not comply with section 92 F (2) in that they did not raise points of law. He also submitted that the grounds of appeal fell foul of Rule 44 of the Supreme Court Rules in that they were not concise and precise and that a reading of those prospective grounds of appeal showed that they did not qualify as such. He urged the Court to dismiss the application in its totality.

In response, the Applicant stated that the Court should be guided by the fact that the appeal contemplated was not trifling as a lot of money was involved which was in the region of $145 000-00. He also stated that a reading of section 92 F (1) was clear in that it provided that anyone who was aggrieved by the decision of the Court could appeal to the Supreme Court. AS far as the grounds of appeal not raising points of law, Applicant submitted that the Court was not sitting as the Supreme Court and should consider the grounds of appeal as “draft grounds of appeal”.

Applicant also submitted that the grounds of appeal in question were concise and precise as they raised specific questions of law. He argued that the grounds of appeal fully complied with Rule 44 of the Supreme Court Rules. He prayed that the points in limine be dismissed.

Analysis

The Court informed the parties that the decision on the preliminary points would form part of the main judgment and proceeded to hear the matter on the merits. This was clearly to circumvent the possibility of having two hearings where one could be held.

I now proceed to deal with the preliminary points raised by Mr. Chivhuna as I must do. I am of the view that the point in limine raised by Mr. Chivhuna that the grounds of appeal do not raise points of law is dispositive of the matter.

In Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) it was held that a question of law has three distinct meanings:

a. A question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question it thinks fit in accordance with what is considered to be the truth and justice of the matter.

b. A question as to what is the law. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter.

c. A question which is within the province of the judge instead of the jury.

MAKARAU JA (as she then was) elaborated on this in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20 as follows:

“Put differently, the broad position of the law is that an appeal from the court a quo to this 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.”

A reading of the prospective grounds of appeal shows that they do not point to any single point of law that the Supreme Court is being asked to determine. For example, it is not clear in paragraph 1.1(a) to (d) what the point of law is from a narration of events, court hearings, different statutes cited, the Constitution and other material. In my view, the Applicant expects the Supreme Court to pick from that narration what point of law arises therefrom. This applies to the rest of the ‘grounds of appeal’ under paragraphs 1.2 (a) to (c) and 1.3 (a) to (c). What is clear is that all the above do not arise out of the determination of this Court of 17 October 2024. In Zimbabwe Open University v Ndekwere SC 52/19 it was stated as follows:

“Aground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts but must go further and show how that misdirection came about. Merely alleging a misdirection without further substantiation would not be enough as the attack would remain one against a factual finding. In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.”

A reading of Applicant’s grounds of appeal shows no such compliance.

It was contended by the Applicant that this Court was not sitting as the Supreme Court and therefore it should consider the grounds of appeal as ‘draft grounds of appeal’. This is not the correct legal position. In Chamboko v Dorowa Minerals Limited SC 26/15 it was stated as follows:

“In any case an applicant for leave to appeal must file a notice of appeal that conforms to the requirements of the rules of court at the time the application for leave is made. Where the notice of appeal filed is fatally defective, there is no valid application.”

As stated by Respondent is documents filed in opposition, Applicant’s task was simple. Applicant was supposed to avail the Court Order which directed that he be reinstated with an alternative for payment of damages. This remains an issue which has not even been addressed in the present application. Clearly, the grounds of appeal do not raise any point law. There is no need to deal with the other points in limine and the merits of the matter. This Court, as a gatekeeper, cannot allow the matter to be placed before the Supreme Court in its current position.

In disposing of the matter. I am inclined to adopt the attitude of GUVAVA JA in Fadzai John v Delta Beverages Limited SC 40/17. Striking the matter off the roll does not finalize it but merely means the matter will be filed again thus clogging the court system with recycled cases. As is clear in this matter, it has assumed roles before the arbitrator, several occasions in this Court, the High Court and also the Supreme Court. There must be finality in litigation. The following order is appropriate:

1. The point in limine is hereby upheld.

2. The application for leave to appeal to the Supreme Court is hereby dismissed. 3. Applicant to meet Respondents’ costs.

C. Nhemwa and Associates-	Respondents’ legal practitioners.