Pfungwa Marufu v Southern Granites (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/626/2016
HARARE, 9 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/626/2016

HARARE, 9 MAY 2016				  CASE NO. LC/H/APP/1503/15

AND 21 OCTOBER 2016

In the matter between:-

PFUNGWA MARUFU					Applicant

And

SOUTHERN GRANITES (PVT) LTD			Respondent

Before The Honourable E. Makamure, Judge

For Applicant		Mr A. Muchadehama (Legal Practitioner)

For Respondent		Mr I.E.G. Musimbe (Legal Practitioner)

MAKAMURE J:

This is an application for leave to appeal to the Supreme Court.  This Court on 25 November 2015 made an order dismissing the applicant’s appeal.  The applicant noted an application for leave to appeal within the requisite thirty day period but that was done before the reasons for the judgment were handed down.

However when the application for leave to appeal was set down for hearing, reasons for judgment had been handed down (Judgment LC/H/186/16).  The applicant did not amend its notice to make reference to those reasons.One the date of hearing A point in limine was raised before the application for leave was argued. Thereafter the application was heard.  I will therefore deal with the preliminary issue first and then proceed to determine the application for leave to appeal.

Point in Limine

When the application was heard Mr Musimbe who appeared on behalf of the respondent raised a point in limine.  He argued that it was improper for the applicant to have appealed against an order whose reasons she did not know.  For that reason Mr Musimbe submitted that the application was not properly before the court.

Mr Muchadehama who appeared on behalf of the applicant argued that the rules provide  for an appeal against a decision of this court to be made within thirty (30) days from the date of that decision.  For that reason it was Mr Muchadehama’s submission  that the application is properly before the court.While the position of applicant with respect to the Rules is correct, the application was against the order LC/H/1896/15  and not judgment LC/H/186/16.  That order had no reasons.  What this means is that the applicant’s founding affidavit which is attached to the draft notice of appeal is not based on judgment of this court but on the award by the arbitrator.  That is not appropriate.  The applicant ought to have based her appeal on the judgment of this Court especially considering that by the time that the application was heard,the reasons for the decision were ready.  For that reason I find merit in the point in limine. The application is not properly before me.  The point in limine is accordingly upheld.

MERITS

An application for leave to appeal is granted on the basis that there are prospects of success on appeal. (See Sable Chemical Industries Ltd v David Peter Easterbrook 2010 SC 18/10).

In the present matter, when the appeal was considered it was found as a fact that the appeal was on factual findings.  Ordinarily an appeal on the facts is not properly before the Labour Court.  The Labour Act [Chapter 28:01] (The Act) provides in section 98 (10) that only issues of law are appealable to this court from a decision on an Arbitrator appointed in terms of the Act. Out of abundance of caution the appeal was considered and still at the end it was dismissed.  The same  considerations still stand.  It is clear from the draft notice of appeal and grounds that regard was not had to the reasons for judgment, which judgment was handed down by this Court.  Had sight been had of that judgment, the applicant would have noted that:

On the question of splitting of changes, two incidents separate from each other occurred and the employer was therefore entitled to prefer two charges against the applicant.

On the question of theft, the appellant unlawfully accessed the payslips in question and produced them before an  arbitrator.  They may have been returned later but that was after the offence of theft had already been committed to completion.  The information that was on those payslips was used and the fact that the payslips were subsequently returned did not cure the theft.

On the question of wilful disobedience to a lawful order, the court  considered that it is within the ordinary course of a person’s employment that they are required to write reports or a report.  I still hold the same view. Refusal to write a report as required by an employer goes to the root of the employment contract.  Had the applicant asked her legal practitioners to submit the said report I believe that that would have been sufficient compliance.  I do not think that the charges would have been levelled against her.  She conducted herself in a manner constituting wilful disobedience as envisaged in Matereke v C.T. Bowing & Associates 1987 (1) ZLR 206 (S).

Mr Musimbe who appeared on behalf of the respondent submitted that grounds raise questions of fact and not law.  I agree.  As already noted, factual issues have been raised and they arise from the arbitral award and not from the judgment of this Court.

In conclusion I agree that the application was not properly before the court. However, having proceeded to consider it out of abundance of caution, I find that it lacks merit.  There are no prospects of success.  Mr Musimbe asked for the dismissal of the application with costs on a punitive scale.  While I agree that the costs should be on a punitive scale, I am of the considered view that costs on the ordinary scale will meet the justice of the case.

In view of the foregoing the application is declined.

Accordingly it is ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Mbidzo, Muchadehama & Makoni, applicant’s legal practitioners

I.E.G. Musimbe & Partners, respondent’s legal practitioners