Tafadzwa Takawira v Prospect Lithium Zimbabwe Pvt Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/167/24
HARARE 30 JANUARY,2024
CASE NO. LC/H/976/23
AND 15 APRIL, 2024
In the matter between: -
TAFADZWA TAKAWIRA
Appellant
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THE LABOUR COURT OF ZIMBABWE
HARARE 30 JANUARY, 2024
AND 15 APRIL, 2024

In the matter between: -

TAFADZWA TAKAWIRA
Appellant

Versus

Prospect Lithium Zimbabwe Pvt Ltd
Respondent

Before the Honourable L. Hove, Judge:

For appellant : Mr. W. Kamusasa
For respondent: Mr. T. Nyanayaro

This appeal seeks the setting aside of the internal appeals officer’s decision and the reinstatement of the appellant with no loss of salary or benefits or alternatively the payment of damages in lieu of reinstatement.

The appellant was employed by the respondent. It was alleged that on the 7th of July 2023 while the appellant was coordinating the loading process at his work place, he failed to ensure that there were no leakages. He further failed; it was alleged, to put preventative measures to contain any possible thefts. Disciplinary proceeding against the appellant were conducted by the respondent and he was found guilty. Dissatisfied, he noted an appeal to the appeals authority which dismissed his appeal and upheld the penalty of dismissal. The appellant was dissatisfied with the outcome of his appeal and noted an appeal to the Labour Court.

Grounds of appeal and the prayer

The appellant’s grounds of appeal are 4 and they are that;

1. The appeals designated authority grossly erred in law by upholding the appellant’s conviction on the charge of ‘substantial neglect of duty’ in circumstances where the alleged offence does not exist in terms of the mining employment code of conduct SI 165/92.
2. The appeals designated authority grossly erred in law by concluding that the appellant was properly charged where the facts of the case clearly suggest otherwise.
3. The appeals officer erred in law by concluding that the dismissal of the appellant by the disciplinary committee had been effected in accordance with the law and thus could not be termed unfair.


4. The appeals officer erred in failing to appreciate that the penalty of dismissal imposed by the disciplinary committee was unduly harsh, excessive and disproportional to the offence committed.

Wherefore, appellant prays that the decision of the appeals designated authority be set aside and substituted with the following,

1. That the appeal be and is hereby allowed with costs
2. That the determination by the appeals designated authority be set aside and substituted with the following: a) Appellant is found not guilty and is hereby acquitted
   b) Appellant is hereby reinstated to his position without any loss of salary and benefits with effect from the date of dismissal failing which the respondent shall pay him damages in lieu of reinstatement.

The respondent challenged these grounds of appeal and the prayer sought and raised preliminary objections.

The first Preliminary objection

The first of these preliminary objections was that the appellant has not challenged all of the finding of the appeals authority and chose only to challenge two aspects of the findings. The respondent stated in its head of argument that the challenge boarders on conviction and penalty and other findings have not been challenged which include the short comings of the investigation process, the applicability of the parity principle and whether the complaint should have participated. All these other findings will not have a leg to stand on if the two issues of the conviction and the penalty are successfully challenged. What I mean is, if the conviction is found to be wrongful, then whole appeal must succeed irrespective of whether or not the complainant should have participated, the short comings of the investigation process and the parity principle. These are not the real issues. The real issue is whether or not the appellant is guilty and whether the sentence is appropriate so once these are successfully challenged, the whole appeal must succeed. If the appellant is not guilty on the merits of the charge, it makes no sense to say, ‘but the investigations were properly conducted etc’ those are just peripheral issues.

In the case of Tendayi Tamanikwa & another v Zimbabwe Manpower Development Fund and anor SC 73/17 the Court held that;

“it is plain that the notice of appeal and the relief sought by the appellants are irreconcilably contradictory. It is rather irrational for the appellants to appeal against only part of the judgment and then seek to have the whole judgement set aside.”

This indeed is the correct position of law but cannot be applied to peripheral issues that a Court decides before making its final determination. The Tamanikwa position would refer to say an appeal challenges only the penalty but seeks the setting aside of the whole determination when a finding on the conviction on the merits remain unchallenged. It does not refer to issues of whether or not the investigations were proper etc, those are not the substantial issues before the tribunal.

I agree with the appellant’s argument that the issues challenged, that is conviction and penalty are dispositive. Once the Court finds for the appellant on those issues, the entire determination of the appeals authority falls away. The notice of appeal is thus not fatally defective.

The second preliminary objection

This preliminary point raised is that the first ground of appeal does not raise an issue that was raised before the appeals authority. The first ground of appeal challenges the fact that the appellant was charged with substantial neglect of duty when the code refers to habitual and substantial neglect of duty. The applicant’s representative did not address this issue in his response. He did not state whether or not the issue had been raised before the appeals authority in the first appeal. He simply did not address the issue and what is not denied must be taken to be admitted. I have myself perused the appeal before the appeals authority and the issue was not-raised.

The decision of the appeals authority can therefore to be faulted on the basis of something that was not placed before it. See in this regard the cases of Dandazi v Hwangé Colliery Co Limited 2001 (2) ZLR 298, and Farai Sibanda v Ecobank Zimbabwe Limited LC/MT/05/21.

The $1^{st}$ ground of appeal is thus improperly before the Court and must be struck off. Third preliminary objection

Another preliminary objection was that the second ground of appeal lacks precision and is not concise. The challenged ground reads as follows;

“the appeals designated authority grossly erred in law by concluding that the appellant was properly charged in circumstances where the facts of the case clearly suggest otherwise.”

The appellant is definitely not clear as to what circumstances he is referring to further and in any event the phrase ‘where the facts of the case clearly suggest otherwise’ is too generalized it is inviting the Court to sift through the whole case before it can understand what is being challenged. The Courts have stated that grounds of appeal should be exact and should specify what finding of the tribunal a quo is being challenged. In casu, I agree that the challenged ground is not clear and neither is it concise. In the case of Start v Nyamukapa 2011 (2) ZLR 417 (H) at 421 where the Court emphasize the need to be concise and not to generalize.

“it is inappropriate to file grounds of appeal that are vague… Filling of grounds and a notice of appeal is not a mere formality. The grounds should be precise, clear and unambiguous…”

The ground of appeal is thus improper and must also be struck out.

In the result, the Court makes the following order. Order

1. The first preliminary objection is without merit and it be and is hereby dismissed.
2. The second and third preliminary objections being with merit are upheld and the $1^{st}$ and $2^{nd}$ grounds of appeal are struck off.
3. The registrar will set down the matter to be heard on the merits of grounds of appeal numbers 3 and 4.


4. Each party bears its own costs.
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