Petrozim Line (Pvt) Ltd v Samuel Hova

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/311/2024
HARARE 16 JULY 2024 28 JULY 2024
CASE NO LC/H/515/24
PETROZIM LINE (PVT) LTD
APPLICANT
SAMUEL HOVA
RESPONDENT
Before the Honourable G. Musariri Judge:
---------


==============================

PETROZIM LINE (PVT) LTD

SAMUEL HOVA

RESPONDENT

Before the Honourable G. Musariiri Judge:

For Applicant - Mr A.K. Maguchu, Attorney
For Respondent - Mr S. Hova, Respondent

MUSARIRI, J:

Applicant applied for leave to appeal this Court’s judgement referenced LCH 180/24 to the Supreme Court. The application was made in terms of section 92F (2) of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules, 2017. Respondent opposed the application. The draft grounds of appeal

“1. The court a quo erred at law in interfering with the Disciplinary Committee’s decision to decline 1st respondent a postponement in circumstances where the Disciplinary Committee’s exercise of discretion was not found to have been exercised capriciously or in a grossly irregular manner.
2. The court a quo seriously misdirected itself in interfering with the disciplinary committee’s decision to decline the 1st respondent a postponement on the ground that 1st respondent needed time to prepare for the impending hearing yet the 1st respondent was in fact ready for the hearing.
3. The court a quo seriously misdirected itself in interfering with the disciplinary committee’s decision on the grounds that the disciplinary committee had treated parties unequally to the 1st respondent’s detriment when in fact the 1st respondent had been allowed more latitude, had demonstrated a propensity to delay and/or scuttle the proceedings.
4. The court a quo seriously misdirected itself in finding that the 1st respondent, a respondent party in an ongoing disciplinary hearing was entitled to a postponement to prepare for a hearing.”


The respondent opposed the application through his notice of opposition and heads of argument. The latter document argued thus,

“10 The grounds of appeal herein are clearly based on attacking the factual findings of this Honourable Court. Grounds of law must be analysed based on substance not form. There is no doubt that the grounds attack the finding that there was no wilful default and that the refusal to grant postponement was injudicious.

11 Going by RBZ v Granger, the Appellant ought to have shown that this factual finding of this honourable Court was so unreasonable that no sensible person would arrive at the same conclusion.

12 It is clear why the Applicant does not do so, it is because all Courts will agree that it is not unreasonable to conclude that after the Applicant had brought in six witnesses over eight days, the Respondent’s request for only one day to prepare his defence and notify witnesses was no (sic) outrageous.”

In oral argument applicant countered that respondent is wrong to say that the draft appeal raises factual issues. It argued that in such matters findings of fact are made at the initial hearing. On review by this Court the matter turns mainly on matters of law. In this vein it relied on the case of

**Muyaka v Bak SC 39/17**

**Per Uchena JA at P 4**

“Findings of fact in any proceedings except where an appeal is heard in the wide sense (a Rehearing) are made by the initial disciplinary authority, tribunal or court of first instance. They can, except in the case of an appeal in the wide sense, only be made once by such disciplinary authority, tribunal or court. In this case they were made by the Initial disciplinary authority. Thereafter from the respondent’s internal appeals officer to the Labour Court, the task was not to make findings of fact, but to assess the findings of fact made by the disciplinary authority against the standard of gross unreasonableness in the circumstances they were made.”

By parity of reasoning this Court’s ruling was based on the conclusion that the denial of respondent’s plea for postponement by the disciplinary authority was grossly unreasonable in the circumstance. Such conclusion is effectively a point of law based on the gross error found by the Court. It therefore follows that the draft appeal as it is couched raises questions of law, based on this Court’s finding on a point of law, for determination by the Supreme Court.


Wherefore it is ordered that

1. The application for leave to appeal be and is hereby granted;

2. Applicant may appeal this Court’s judgement referenced LCH 180/24 to the Supreme Court of Zimbabwe; and

3. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
--- END OCR FALLBACK ---