Themba Sibanda v African Banking Corporation Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/35/2021
HARARE, 22 MARCH 2021 &
9 APRIL 2021
CASE NO LC/H/APP/963/18
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/35/2021

HARARE, 22 MARCH 2021 &			 CASE NO LC/H/APP/963/18

9  APRIL  2021

In the matter between:-

THEMBA SIBANDA				APPLICANT

And

AFRICAN BANKING CORPORATION 		RESPONDENT

LIMITED

Before the Honourable Kudya  J

For the Applicant			Paul Mutsatsa (ZIBAWU)

For the Respondent			H. Muromba (Legal Practitioner)

KUDYA, J:

This is an application for leave to appeal to the Supreme Court at the instance of the applicant employee. Background to the matter is that the employer the bank successfully appealed to the labour against a reinstatement order made by the NEC Appeals Committee for the banking sector in a labour dispute pitting the employee and the bank. The employee was irked by the success of the appeal so he now wants to approach the Supreme Court on appeal.  It is in the light of such intent that he seeks leave from this court to approach the Supreme Court on appeal.

The bank is opposed to the grant of the leave relief citing that the employee has not made out a good case for such relief.

The test for success or failure in leave applications is set out in the case of C.M.E.D. vs Dombodzvuku  SC-31-12.  The employee contends that the labour court erred by allowing the appeal against the NEC’s decision. He says the labour court erred to accept the fact that his guilt had been proven on a balance of probability.  His view is also that the labour court erred by not acknowledging that the hearing officer’s decision was outrageous that not reasonable tribunal applying its mind to the facts would conclude as such. He says the labour court grossly misdirected to set aside the NEC decision yet the employer had failed to show good cause that the employee had committed on offence.

He repeated that the labour court erred to uphold the hearing officer’s decision which in his view lacked merit. In conclusion he states also that the labour court grossly erred to conclude that even if he was not guilty of not following bank procedures the misconduct act was properly laid out in terms of the Code of Conduct.  In the result he prayed that the court grant him leave to appeal to the Supreme Court so that his appeal can be granted on the basis of the just stated grounds.

In response to the leave application the bank maintains that all the grounds sought to be taken up on appeal are all factual.  To that extent they do not satisfy the point of law test Sable Chemicals vs Easterbrake SC-18-10. In its view grant of leave will be an exercise in futility as there is no legal question calling for the Supreme Court decision or merited gross unreasonableness on the facts elevated to a point of law to call for the Supreme Court’s intervention.

A reading of the appeal grounds demonstrate clearly that there is no point of law or gross misdirection on the facts worthy of the Supreme Court’s attention.  It is clear from the labour court judgement that the court did not see why the NEC vacated the   shop floor level decision without good cause.  See the appeal test in a trier of fact decisions. Nyahonde v Hokonyo 1997(1) ZLR 475 (SC). It is therefore clear that there is nothing worthy of the Supreme Court’s decision in that regard.  It is clear that no good case for leave has been made out. It should accordingly fail.

IT IS ORDERED THAT

Application for leave to appeal being without merit it be and is hereby dismissed with each party bearing own costs.

Kantor and Immerman, Respondent’s Legal Practitioners