Sino Zimbabwe Cotton Holdings (Pvt) Ltd v Patrick Dzingai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/220/16
HELD AT HARARE 24 FEBRUARY 2016
CASE NO 220/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/220/16

HELD AT HARARE 24 FEBRUARY 2016			CASE NO LC/H/REV/49/15

& 22 APRIL 2016

In the matter between:

SINO ZIMBABWE COTTON HOLDINGS (PVT) LTD		Applicant

And

PATRICK DZINGAI						Respondent

Before The Honourable F C Maxwell, Judge

For Applicant			Mr W Chivaura (Legal Practitioner)

For Respondent		Mr E Mukwewa (Legal Practitioner)

MAXWELL, J:

This is an application for review of an arbitral award in favour of the respondent.  Respondent.  Respondent was an area manager who was dismissed following proceedings in terms of S.I. 15 of 2006.  Respondent had been charged with six counts but was convicted of five.

Aggrieved by the dismissal, respondent reported the matter to the labour officer who subsequently issued a certificate of No Settlement.  The matter was thereafter referred to compulsory arbitration.  The arbitrator rendered an award which is the subject of this application for review	.

The grounds of review are

The determination by the honourable arbitrator is unreasonable as it is based on misdirection on the facts placed before him and there is no evidential conclusion arrived at.

The honourable arbitrator misdirected himself and did not apply his mind to the facts at hand in arriving at the determination particularly on the 5th charge, namely that respondent inflated cotton buying prices in Chironga area by claiming he bought cotton at US$0.61 per kilogram when in fact he had bought same at US$0.51 per kilogram.  The honourable arbitrator also misdirected himself on the 6th charge, namely that respondent produced and signed a time sheet showing that two workers had worked 8 hour days from 2 June 2013 to 30 June 2013 when they had not worked at all and were paid a total of US$1065.85.

The honourable arbitrator misdirected himself by not paying regard to the fact that applicant did prove its claim, by copy of a written report from a farmer, Mr Agrippa Mususa, that respondent had indeed bought the farmer’s cotton for US$0.51 per kilogram and not US$0.61 per kilogram as respondent alleged; and by that applicant had discharged its onus of proof.  The honourable arbitrator misdirected himself by disregarding the farmer’s evidence, this being a non-criminal proceeding.  Applicant had proved its allegation on a balance of probabilities.

On the 6th charge of “Ghost Workers” the honourable arbitrator misdirected himself by ascribing a very restrictive meaning of the term “Ghost Workers”.  To the arbitrator the term “ghost workers” means “… someone who does not exist/does not work for the organisation but fraudulently get (sic) a salary.”  The honourable arbitrator did not consider alternative meaning of “ghost workers” that the applicant had in mind when it charged respondent.  By “ghost workers,” applicant meant individuals who existed on paper and on the ground but who did not carry out any duties that they were hired for.  It is instructive to note that respondent was aware that the buying point at Tabex at which the “ghost workers” were meant to work was never established.

The arbitrator failed to appreciate the fact that respondent, by signing time sheets showing

that the two “ghost workers” in question had worked 8 hour days, and were paid on that basis when in fact he knew that they had not work (sic) at all made respondent culpable.  The honourable arbitrator failed to appreciate that not only was respondent’s conduct or omission prejudiced to the applicant, it was also inconsistent with the fulfilment of the express or implied conditions of his contract.  Respondent ought to have advise (sic) his employer that the two employees had not worked at all, if he had done so and not misled applicant, the two would not have been paid as their contracts of employment specifically stated that they would be paid for the actual hours worked in terms of clause 9 of the contract which says: “Please note that this contract is based on hours physically worked and hours not worked will not be paid.” (sic)

It is the applicant’s considered view that the arbitrator therefore failed to analyse the facts placed before him and resultantly misdirected himself.

In the notice of response, respondent averred that the arbitrator did not misdirect

himself at all, that his decision was reasonable as he acted upon facts placed before him.  In oral submissions, counsel for respondent raised the issue that the matter is improperly before the court as applicant used wrong procedure.  He submitted that the grounds of review are attacking the merits of the arbitrator’s decision so applicant ought to have proceeded by way of appeal.

There is merit in counsel for respondent’s submissions.  The rules of this court provide separately for appeals and reviews.  Appeals are governed by Rule 15 of S.I. 59/06 whilst reviews are governed by Rule 16.  It is trite that procedural irregularities are dealt with on review whilst an appeal deals with the correctness of the decision made.  As stated in the case of Muringa v Air Zimbabwe & Another 1997 (2) ZLR 488

“Judicial review, as e phrase implies, is not concerned with the correctness of the decision but with the decision-making process.”

See also ZFC Ltd v Geza 1998 (1) ZLR 137.  Section 92 E of the Labour Act [Chapter 28:01] (as amended) provides the grounds of review by this court.  In summary they are

absence of jurisdiction;

interest in the matter, bias malice and corruption; and

gross irregularity.

Section 98 (10) of the said Act governs appeals from the decisions of arbitrators.  The

law requires that the appeal must be on a question of law.  An examination of the grounds of review listed by the applicant demonstrates that it is not aggrieved by procedural irregularities but by the decisions reached by the arbitrator on the issues highlighted.

The grounds of review faults the arbitrator for basing his determination on misdirection on the facts.  It is trite that a serious misdirection on the fact amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a decision.  See Chinyange v Jaggers Wholesalers SC 24/04.  Clearly applicant is aggrieved by the conclusions made by the arbitrator.  As stated in Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa (2nd ed) at P 668

“Where the reason for wanting to have judgment set aside is that the court came to a wrong conclusion on the facts or the law, the appropriate remedy is by way of appeal.  Where, however, the real grievance is against the method of trial, it is proper to bring the case on review.”

Applicant has not raised any issues that attack the method of trial.  I am therefore persuaded to agree with respondent that applicant followed the wrong procedure.  For that reason the application is improperly before this court and it cannot succeed.

Wherefore the following order is appropriate,

The application for review be and is hereby struck off the roll for being improperly before the court.

Applicant be and is hereby ordered to pay Respondent’s costs of suit.

Mauga Manda & Associates applicant’s legal practitioners

Nyandoro & Mukwewa Legal Practitioners, respondent’s legal practitioners