Tongogara RDC v Oripa Mukaratigwa

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THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/227/24
HARARE 20 MARCH ,2024
CASE NO. LC/H/51/24
AND 20 MAY, 2024
In the matter between: -
Tongogara RDC
Appellant
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THE LABOUR COURT OF ZIMBABWE
HARARE 20 MARCH, 2024
AND 20 MAY, 2024

In the matter between: -

Tongogara RDC
Appellant
Versus
Oripa Mukaratigwa
Respondent

Before the Honourable L. Hove, Judge:

For Appellant : Mr .M. Mavhiringidze
For Respondent : Mr. T. E. Mudzuri

HOVE J:

This matter was placed before me as an appeal against an arbitral award handed down on 20 December 2023.

Background

The appellant employed the respondent as an expenditure clerk from July 2000. She was engaged as a grade 7 employee. In February 2018 the appellant was assigned to do grade 9 duties. Her pay and other benefits remained at those of a grade 7 employee. As a result, the respondent made a claim against the appellant raising the issue of the failure by the appellant to pay her an acting allowance.

When the matter came up for hearing, the respondent’s representative raised preliminary points.

The preliminary points

The respondent argued that the appeal was not raising any point of law as is required in terms of 5.98 (10) Of the Labour Act [chapter 28:01] (the Act) which provides as follows;

“An appeal on a question of law shall lie to the labour Court from any decision of an arbitrator appointed in terms of this section.”

The grounds of appeal are 4 and they are that;

1. The Honourable arbitrator erred and misdirected herself in law by awarding the respondent minimum salary for grade 9 for 2 years which was outside her terms of reference and not claimed by respondent.
2. The honourable arbitrator misdirected herself in law by asking the parties to come back for quantification in circumstances where the terms of reference called upon her to determine quantum at first instance.


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 3. The honourable arbitrator erred and misdirected herself in law by finding that the respondent was performing duties of a grade 9 in circumstances where no evidence was put before her to support the finding.

4. The honourable arbitrator erred and misdirected herself in law by not determining at all the claim that was before her, which that of acting allowances and ended up creating a new claim for respondent and granting it.

Preliminary points raised

The respondent alleged that grounds 1 and 4 are challenging factual findings made by the arbitrator that the respondent was to be awarded 2 years’ salary at grade 9 level. Secondly it was alleged that ground of appeal number 4 raises no point of law, it is challenging factual findings.

Further, it was argued by the respondent that ground of appeal number 2 also raises no point of law. Ground of appeal number 3 is also argued to be vague and does not raise any point of law. The allegation is also made that grounds of appeal numbers 2 and 3 seek to challenge the determination on procedural grounds. Issues of procedure were argued to relate to review applications and not appeals.

Appellants response

The appellant argued that a point of law is one that can be answered by the question, what is the position of law regarding the issue?

He submitted that the question raised in grounds of appeal 1 and 4 is that the arbitrator did not deal with the issues that had been placed before her. In ground of appeal number 1 the arbitrator is argued to have gone outside her terms of reference. In ground of appeal number 4 she created an issue that had not been placed before her by the parties. She is argued to have exceeded her mandate by failing to determine those issues that had been placed before her but created a new claim for the respondent and granted it. It was submitted that the issue being challenged in these grounds is whether or not an arbitrator could in law decide issues outside those placed before her by the terms of reference. This, it was argued, was a point of law. This makes grounds of appeal number 1 and 2 to be in terms of section 89 (10) of the Act and thus properly before the court.

Grounds of appeal number 2

The appellant argues that the arbitrator ought to have dealt with the issue of quantification in the first instance.

Ground of appeal number 3

The appellant argues that the arbitrator failed to find that there was no evidence to support her findings that the respondent was performing grade 9 duties. Issues of evidence are factual.

Analysis by the court

Grounds of appeal number 1 and 4

These essentially seek to challenge the decision made by the arbitrator on the basis that she failed to determine the issues that had been placed before her by the parties. That she had exceeded her mandate by deciding that the respondent was entitled to a grade 9 salary when the issue was whether or not respondent was entitled to an acting allowance.


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The issues of exceeding one’s mandate or acting outside the terms of reference is not factual it is raising points of law.

What is a question of law has been defined to include?

“A question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.”

It is also defined as;

“A question as to what the law is thus an appeal on the question of law means an appeal in which the question for argument and determination is what the true law is on a certain matter.”

See South Africa and others vs Press Corporation of South Africa 1992 (4) SA 791 (A).

Grounds of appeal 1 and 4 seek to question the law insofar as it relates to what or what not an arbitrator can do when acting in terms of giving terms of reference. The law has authoritatively answered this question to the exclusion of the right of the court to answer the question as it thinks fit. It is therefore clear that the question of whether or not an arbitrator acted within the terms of reference or exceeded that mandate is a question that the law has authoritatively answered. The 2 grounds of appeal, that is, grounds 1 and 4 are therefore properly before the court.

Grounds of appeal numbers 2 and 3

Ground number 2

This ground is not raising any point of law. It is challenging the procedure adopted by the arbitrator. I agree with the respondent’s argument that one cannot raise issues of procedure in an appeal. Procedural issues should be challenged by way of the review application.

It is common cause that in an appeal the court is limited to the substantive correctness of the decision appealed against whilst in a review the court does not concern itself with the substantive decision. The court addresses issues of procedure.

The appellant’s real grievance in this ground of appeal is the procedure adopted by the arbitrator, the method of trial. Under those circumstances it is proper to challenge the proceedings by way of review. The decision-making process like whether or not quantification had to be done in the first instance or at a later stage should be challenged by the way of review.

See in this Regard the cases of;

Khader v Chairman Town Planning appeals board 1998
(4) All SA 201 at 207 Chiripanyanga v NOCZIM
judgement number LC/H/102/2011.

See also Herbstein and Van Winsen: The Civil Practice of the High Court’s of South Africa 5th Edition page 1271

Ground of appeal number 2 is therefore not a proper ground of appeal.

Ground of appeal number 3


This ground is raising issues of fact. It seeks to challenge the fact that there was no evidence and issues of evidence are factual. They do not speak to what the law is. The appellant has not shown and neither has it alleged that the arbitrator in making those factual findings grossly misdirected herself.

In the case of **Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)** the Court stated that;

“An appeal court will not interfere with the decision of a trial court based purely on a finding of fact the court can only interfere if it is shown that having regards to evidence placed before the trial court the finding complained of is so outrageous in its defiance of logic or acceptable moral standards that no sensible person who would have applied his or her mind to the question to be decided could have arrived at such a conclusion.”

The appellant has not alleged nor show that the finding complained of his irrational. The challenge based purely on factual findings is thus improperly before the court.

Grounds of appeal number 2 and 3 are therefore not properly before the court the court makes make the following order.

**Order.**

1. Grounds of appeal numbers 1 and 4 are properly before the court.
2. Grounds of appeal numbers 2 and 3 are improperly before the court and they be and are hereby struck out.
3. The Registrar will set the matter down for continuation on the basis of grounds 1 and 4.
4. Each party bears its own costs.


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