Taipa Zengwe & 2 Ors v Finmark Holdings (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/423/16
HELD AT HARARE ON 23RD MARCH, 2016
CASE NO. LC/H/243/16
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/423/16

HELD AT HARARE ON 23RD MARCH, 2016 	    CASE NO. LC/H/1045/15

AND 22ND JULY, 2016

In the matter between:-

TAIPA ZENGWE							1st Appellant

ODIUS MANDARAHWE						2nd Appellant

FREEMAN MUTSWAKATIRA					3rd Appellant

And

FINMARK HOLDINGS (PRIVATE) LIMITED		Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr W Chishiri (Legal Practitioner)

Respondent	:	Mr W T Pasipanodya (Legal Practitioner)

MHURI J.

Appellants filed an appeal against an arbitral award.  It is trite that appeals such as this one must be premised on a point of law.  Section 98(10) of the Labour Act reads –

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator …………..”

As per Appellants notice of appeal filed of record, the grounds of appeal are as follows:

“1.	The Honourable Arbitrator seriously misdirected himself on the facts by finding that the Appellants failed to discharge the onus on them to prove on a balance of probabilities, the existence of a contractual obligation of the Respondent to assist and/or provide Claimants financial assistant to purchase residential stands for them, and sell them its own trucks at bank value and provide them with medical insurance.  Such a finding was not supported by any evidence and was contrary to the evidence presented before the Honourable Arbitrator.

The Honourable Arbitrator erred by finding that the Appellants were not owed overtime allowances, notice pay and cash in lieu of leave.  Such a finding was contrary to the law and the evidence presented.

The Honourable Arbitrator erred in finding that by signing for their exit packages the Appellants waived their rights.  The document signed by the Appellants did not amount to a waiver or renunciation of their rights at all.

The Honourable Arbitrator erred at law by refusing the Appellants the right to be heard by leading oral evidence when such a request had been made.  This was a violation of the Constitution and the Arbitration Act [Chapter 7:15].

Respondent took issue with these grounds and raised a point in limine to the effect that the appeal is not properly before the Court as the grounds are review grounds for which Appellant ought to have filed form LC4 in terms of Rule 16 of this Court’s Rules, Statutory Instrument 59 of 2006.

It was submitted that failure to comply with the Rules makes the pleadings fatally and incurably defective.

Respondent’s submission was that Appellants should have filed an application for review instead of an appeal.

It is a trite position of the law that appeals against arbitral awards are to be on a question of law.

It is also a trite position of the law that the Labour Court is clothed with both appeal and review powers.  (See Section 89 and Section 92 EE of the Labour Act as amended.)

It is also trite that there are two procedures to be followed by a litigant in the case of an appeal and in the case of a review application.  (Rules 15 and 16 of this Court’s Rules)

Where a litigant who has filed an appeal and seeks review of the proceedings, the Rules require that he/she files form LC4 (Review Form) at the same time he/she files form LC3 (Appeal Form) (Rule 15 (3).

What constitutes a question of law has been defined in a number of decided cases by the Supreme Court.

MUZUVA vs UNITED BOTTLERS (PRIVATE) LIMITED 1994 (1) ZLR 217 (S)

NATIONAL FOODS LIMITED vs STEWART MUGADZA SC 105/95

RESERVE BANK OF ZIMBABWE vs CORRINE GRANGER & ANOTHER SC 34/2001.

At page 5-6 of the cyclostyled judgment, Muchechetere JA had this to say,

“An appeal to this Court is based on the record.  If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such decision.  And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

Grounds of appeal or review must be concise and precise.  This will assist both the Court and Respondent to clearly understand what it is that Appellant is challenging so as to enable the Respondent to properly respond and the Court to make a proper determination.

Grounds of appeal/review which are crafted in such a way that the Respondent and Court have to scratch their heads in a bid to understand them are not proper grounds.

In an appeal based on a point of law, arising from factual findings, the ground of appeal must contain a preamble alleging a gross misdirection on the part of the Arbitrator.  Appellant’s ground number 1 makes such an allegation.

See	FLORENCE CHINYANGE vs JAGGERS WHOLESALERS  SC 24/04.

Respondent did not take issue with the 4th ground.  It is only the 1st, 2nd and 3rd grounds that it takes issue with.

As stated in the RESERVE BANK OF ZIMBABWE VS GRANGER CASE (supra) a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.

It will be for the Court to determine whether on the facts, the misdirection was so unreasonable that no sensible person who applied his mind to the facts would have arrived at such decision.  In other words, the Court is to consider whether the Arbitrator’s decision was grossly unreasonable.

I am not persuaded that the grounds are review grounds as submitted by Respondent.  The grounds fall under the definition as enunciated in the Reserve Bank of Zimbabwe vs Granger case.

Consequently, the point in limine is not upheld.

The Registrar is directed to set the appeal down for hearing on the merits.

RUBAYA & CHATAMBUDZA – Appellants’ Legal Practitioners

MANASE & MANASE – Respondent’s Legal Practitioners