Tapfumanei Mudzengere & 21 Others V CIVIL Aviation Authority OF Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/32/2020
HARARE, 20 JANUARY 2020
CASE NO. LC/H/APP/253/19
AND 31 JANUARY 2020
REF CASE NO. LC/H/704/13
---------


IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO. LC/H/32/2020

HARARE, 20 JANUARY 2020			           CASE NO. LC/H/APP/253/19

AND 31 JANUARY 2020                                                     REF CASE NO. LC/H/704/13

In the matter between:

TAPFUMANEI MUDZENGERE & 21 OTHERS			APPLICANTS

AND

CIVIL AVIATION AUTHORITY OF ZIMBABWE			RESPONDENT

Before The Honourable Murasi J

For the Applicants			Mr E. N. Matsanura

For the Respondent 			Mr C. Kuhuni

MURASI J:

In a judgment dated 2 November 2018, this court set aside Arbitrator Bvumbe’s arbitral award. Applicants are dissatisfied with that decision and intend to approach the Supreme Court on appeal. This is therefore an application for leave to appeal in terms of s 92 F of the Labour Act, [Chapter 28:01].

Applicants are employed by the respondent in the Fire Services Department. Between 1999 and 2004, applicants were seconded by the respondent to the Democratic Republic of the Congo. During that period, applicants were entitled to allowances during their tour of duty. At the end of the secondment, applicants engaged the respondent alleging that some of the allowances due to them had remained unpaid. Respondent and Applicants were engaged in discussions with respondent maintaining the position that the respective allowances had been paid. Most of the other details are contained in the court’s judgment. The gravamen of the applicants’ contentions is that the unfair labour practice was continuing up to the time the matter was referred to arbitration.

At the outset, I should point out that Mr Matsanura, for the applicants, later abandoned the second ground of appeal. This means that applicants remain with one ground of appeal. This ground of appeal is couched as follows;

“The Labour Court erred on a question of law by holding that the dispute of Labour has been prescribed.”

In oral submissions, Mr Matsanura submitted that the parties were engaged in discussions from the time they returned from the Democratic Republic of the Congo up to 2010 when they finally took the decision to take up the matter to the Labour Officer. In this regard, it was argued that the dispute must therefore be taken as continuing for the purpose of section 94 of the Labour Act. Mr Matsanura further argued that the respondent kept on entertaining the applicants who believed that the matter could be resolved amicably. He further averred that the applicants were of the view that litigation should be reverted to as a last resort. Mr Matsanura also submitted that even though applicants’ situation was not covered by section 8 of the Labour Act, their predicament was resolved by section 13 of the same Act. In this regard, he urged the court to take the view that there were prospects of success on appeal and the Supreme Court was likely to come to a different conclusion.

Mr Kuhuni for the respondent, stated that he largely abided by the documents filed of record. He stated that the application did not meet the requirements of an application for leave to appeal as enunciated in precedent. He further stated that applicants had not demonstrated that there were any prospects of success on appeal. To this end he referred to paragraphs 7, 8 and 9 of Applicants’ Founding Affidavit. Mr Kuhuni pointed out that these paragraphs do not lay out any basis for impugning the court’s judgment as the prospects of success are not stated. He further submitted that the court’s judgment had chronicled the events in some detail and showed that factually, the applicants had been made aware of their predicament at an early stage. Mr Kuhuni further stated that applicants had not shown that another court or tribunal would arrive at a different decision. He also referred to precedent in Masara & Ors v Forestry Commission & Anor 1999 (1) ZLR 174 (H) as regards the issue of prescription.

As already pointed out, applicants rely on a single ground of appeal in their application for leave to appeal. I should hasten to comment that the applicants’ Counsel made the concession that applicants’ position did not fall under section 8 of the Labour Act. Mr Matsanura sought to argue that applicants’ case fell under section 13 of the Labour Act. This was clearly clutching at straws. Section 13 of the Labour Act provides as follows:

“WAGES AND BENEFITS UPON TERMINATION OF EMPLOYMENT

1.	Subject to this Act or any regulations made in terms of this Act, whether any

person –

(a)	is dismissed from his employment or his employment is otherwise terminated; or

(b)	resigns from his employment; or

(c)	is incapacitated from performing his work; or

(d)	dies …”

The section refers to payment of terminal benefits where an employment contract is terminated in circumstances listed in that section. None of the situations cited therein apply to the applicants. When applicants approached the arbitrator, they were still in the employ of the respondent. Mr Matsanura sought to make this his strong point. Apart from the fact that section 13 of the Labour Act is inapplicable to his clients, the issue was not argued during the appeal before this court. It is being raised for the first time. Mr Matsanura tried to explain this away by stating that it was a point of law and could be raised at any time. He clearly missed the point. The position is settled at law that a court cannot dispose of an issue which has neither been raised not argued by the party. (See Iris Biscuits (Pvt) Ltd v Trust Mudimu & 2 Ors SC 27/16). The Supreme Court will therefore be disabled from hearing the novel point raised by applicants’ Counsel.

Applicant’s’ sole ground of appeal states that the court “erred on a question of law by holding that the dispute of labour has been prescribed.”

The chronology of events given by this court in its judgment shows it made a factual conclusion that the claims had been affected by prescription as provided in section 94 of the Labour Act. Applicants then were enjoined to demonstrate that this finding was irrational. As pointed out by Mr Kuhuni, no such demonstration was forthcoming. Applicants’ Counsel sought to argue that as there were negotiations between the parties, this should be taken to be interpreted that the dispute or unfair labour practice was “ongoing.” This court clearly pointed out to specific dates on which the applicants were informed in so uncertain terms of respondents’ position. This was well before 2010. What the court received from the applicants is the averment that the court “erred at law”. This route has been traversed many a time by the Supreme. In Reserve Bank of Zimbabwe v T. Lloyd Mufudzi & 3 Ors SC 29/18 Ziyambi JA (as she then was) had this to say:

“Regarding the first ground of appeal, merely using the words ‘erred at law’ does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined. In that connection it has been held that a serious misdirection on the facts would amount to a question of law.”

Applicants’ Counsel was unable to show that the holding of negotiations after they became aware of respondent’s position would be found to arrest prescription. In fact, all case law points to a different direction. Applicants’ Counsel was unable to demonstrate that the court’s finding was so unreasonable or irrational that a different court or tribunal would not have arrived at the same decision given the same facts. Put differently, the decision of the court must be so outrageous in its defiance of logic that no sensible person who had applied his/her mind to the question to be decided could have arrived at it. In Fiona Chikurunhe & 234 Ors v Zimbabwe Financial Holdings SC 10/08, Garwe JA had this to say:

“The party seeking leave must show inter alia that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

It is my firm view that applicants have not demonstrated that there exist any prospects of success on appeal.

In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with costs.

Caleb Mucheche & Partners Law Chambers, Applicants’ Legal Practitioners

C Kuhuni Attorneys, Respondent’s Legal Practitioners