Toyota Zimbabwe (Private) Limited & Anor v Yeukai Gatsi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//24
HELD AT HARARE 29 JANUARY 2024
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H//24

HELD AT HARARE 29 JANUARY 2024	CASE NO. LC/H/850/23 AND 28 FEBRUARY 2024

IN THE MATTER BETWEEN:-

TOYOTA ZIMBABWE (PRIVATE) LIMITED	FIRST APPLICANT

TOYOTA ZIMBABWE DISCIPLINARY COMMITTEE	SECOND APPLICANT AND

YEUKAI GATSI	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicants	Mr. F. Mahere

With Mr. P. Donzvambeva

For Respondent	Mr. B.T. Mudhara

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act, (Chapter 28:01).

The developments in the matter are interesting. Respondent filed a Notice of Opposition as shown in the Opposing Affidavit from page 26 of the record. On the date of hearing, Applicant’s legal practitioner stated that they were raising a point in limine as Respondent had not filed heads of argument and further that Respondent was no longer opposing the application.

Mr. Mudhara confirmed that they were no longer opposing the application. Asked by the Court whether this was the reason for the non-filing of the heads of argument, he stated that the Respondent was now out of Harare and was difficult to communicate with and thus it had become impossible to take instructions from the Respondent to file the heads of argument. The Court brought to his attention that heads of argument were a legal practitioner’s understanding of the applicable law based on the pleadings already filed. Mr. Mudhara further confirmed that they were no longer opposing the application.

Mr. Mahere informed the Court that he had no further submissions to make in light of the position taken by the Respondent. The Court informed the parties that it was enjoined to make a value judgment of whether the matter, despite non-opposition, should be placed before the Supreme Court for determination.

BACKGROUND

Respondent was in the employ of the First Applicant. Allegations of misconduct were levelled against the Respondent. AS detailed in Respondent’s Founding Affidavit in Case Number LC/H/356/23, there were disagreements on how to proceed with the misconduct hearing. The documents show that an amendment to the Code of Conduct had to be made. Pursuant to this amendment of the Code of Conduct, First Applicant informed the Respondent that it was ready to proceed with the hearing.

On Friday 12th May 2023, Respondent filed an Urgent Chamber Application seeking the staying of those proceedings. Those proceedings were pencilled for the 15th May 2023 at 0900 hours. The application was lodged with the Court that Friday afternoon. This Court, in Chambers, proceeded to issue an Order on the following day, the 13th May 2023. The Order provided as follows:

“a. The scheduled disciplinary hearing of the Applicant instituted by the First Respondent before the Second Respondent on 15 May 2023 is hereby stayed.

b. Applicant is hereby directed to file a formal application for review within ten (10) days of this Order.

c. There is no order as to costs.”

It should be noted that Respondent duly filed the application for Review which was opposed by the Applicant. That matter, filed by the Respondent, was subsequently set down for hearing before Honourable Mrs. Justice Hove. This Court has not been made aware of the outcome. Resulting from the Order referred to above, Applicant proceeded to apply for rescission of that Order. It should be pointed out from the outset that the Applicant filed that application without the benefit of reasons for the Order granted on 13 May 2023.

The rescission application was set down for 28 September 2023 which resulted in the judgment being handed down on 9 October 2023. The latte judgment is the subject of the present application for leave to appeal to the Supreme Court. Applicant’s prospective grounds of appeal are couched as follows:

“The court a quo erred at law by:

Failing to find that the Appellants were denied their right to be heard in that a final order was granted to the Respondent without hearing the Appellants.

Refusing to grant rescission of an order that had not been sought by the Respondent in the court a quo;

Failing to find that it had no jurisdiction to grant the interdict that it purported to grant in the matter; and

Failing to make a determination on whether or not it had jurisdiction in the matter in circumstances where the issue having been raised by the Appellants had to be determined by the Court in its disposal of the matter.”

FIRST APPLICANT’S SUBMISSIONS

The first part of Applicant’s submissions, in the Founding Affidavit, relates to the prospective grounds of appeal. In paragraph 13, it is averred that the Court erred by failing to find that Appellants were denied the right to be heard. It is also contended that the order that was given by the Court was final in nature which was not sought by the Respondent. It was also averred in the Founding Affidavit that the Court erred by failing to make a determination on whether it had jurisdiction to grant an interdict which the Labour Court is not permitted to grant as provided by statute. It was also averred in the Founding Affidavit that the Court failed to make a determination on an issue raised by the Applicant.

First Applicant further argues that the interpretation of Rule 18 (5) should be limited to only giving directions pertaining to the application before the Court and not any other matter which is not before the Court. It was argued that the Court was supposed to give an interim relief subject to confirmation at a later date.

Though the Respondent opposed the application initially, the Court was informed that this was no longer the case and the Court will not deal the Respondent’s submissions filed of record.

ANALYSIS

In Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10, GARWE JA (as he then was) had this to say:

“The term ‘question of law; is used in three distinct though related senses. First, it means ‘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’. Second, it means ‘a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter’. And third, ‘any question which is within the province of the Judge instead of the jury is called a question of law’.

The position is also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law. For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.”

In Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20, MAKARAU JA (as she then was) weighed thus:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matter where the court has discretion, or questions what the law is on the specific issue or issues in the appeal of attacks the decision a quo on the facts as being irrational. The remit of this Court in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

I referred elsewhere in this judgment that Applicant did not have reasons for the order granted on 13 May 2023. Mr. Mahere sought to argue that they had written to the Registrar requesting for those reasons. He however made an about turn and stated that ‘A decision was made in consultation with the client to proceed with the application for rescission.’ The reason I am referring to this issue pertains to the first and second prospective grounds of appeal. These issues would have been properly addressed had the Applicant had the benefit of the Court’s reasons in LC/H/356/23. However, of note is the fact that in respect of the first prospective ground of appeal, Applicant does not refer to the Court’s judgment. Page 21 of the record which is part of the Court’s judgment, refers to precedent in the form of Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H)(per CHATIKOBO J) and Document Support Centre v Mapuvire 2006 (2) ZLR 240 (H) (per MAKARAU JP, as she then was). It will not be necessary to repeat what is stated in these cases save to state that the first prospective ground of appeal is adequately addressed.

Applicant does not seek to distinguish those cases, and there is submission that the findings by the Court in that regard were a misdirection in the circumstances. It should be remembered as stated in the precedents cited above, that the Supreme Court should be requested to make a determination on a point of law. The point of law supposedly being raised in that prospective ground of appeal remains obscure.

The second prospective ground of appeal is also problematic. Clearly, the Court, in declining to rescind the judgment or order was exercising its discretion. The question that should arise is whether such exercise of discretion was injudicious or irrational. The averment made in that ground is that the Court erred at law by-

‘refusing to grant rescission of an order that had not been sought by the Respondent in the court a quo.’

What point of law arises from this prospective ground of appeal? The application for rescission of the order was solely based on the fact that Applicant was denied the right to heard. In this ground, an additional issue is added as to the propriety of the issue by the Court.

More importantly, perhaps, is the fact that an application for rescission is based both on the common law and statute as it applies to the Labour Court. Section 92C of the Act provides the parameters in which a judgment may rescinded or varied. A reading of the Court’s judgment makes the point about Applicant’s submissions in the application for rescission in Case Number LC/H/356/23. The following comes from the judgment:

“What the Founding Affidavit should have addressed is whether the application was covered by Section 92 C (1) (b). This was not done. This issue was put to Mr. Mahere by the Court. He stated that the Order should be considered as void without explaining why and how. No submissions in this respect were made. It is trite that an application stands or falls depending on the Founding Affidavit and the facts averred in it.”

The same situation prevails in this application. This is an application for leave to appeal against this Court’s declining to rescind the Order granted in May 2023. I have elsewhere referred to the fact that such an application is provided in statute. I have also stated that the decision to either grant of refuse the application is discretionary. This Court has also pointed out a litigant has to demonstrate that the decision was a result of injudiciousness or irrationality. This is missing from the application. No such averments have been in respect of the decision by the Court to decline rescission. This should be the sole issue that should be before the Supreme Court. There is only one judgment which was issued by the Court in this matter and Applicant has not addressed any ‘faults’ that exist therein as regards the issue of rescission.

The third prospective ground of appeal avers that the Court erred when it granted an interdict when it had no jurisdiction to do so. This averment is also contained in the fourth prospective ground of appeal. The answer lies in the Court’s judgment at page 22 of the record. Applicant has sought to give its own interpretation of Rule 18 (5) of the Labour Court Rules, 2017. It is the Court’s view that those provisions are unambiguous. A grammatical meaning accorded to the provision will show that it enabled the Court to deal with the matter as it did. In Edmore Mapondera and 55 Ors v Freda Rebecca Gold Mine Holdings Limited SC 565/19, BHUNU JA made the following observation:

“It is therefore clear from the authorities that the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.

When interpreting statutes and codes of conduct, the court a quo should endeavor to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards.”

In the urgent chamber application filed with this court, the Respondent had prayed for a ‘permanent stay of the proceedings’. Applicant does not refer to this prayer at all. The Court did not grant a ‘permanent stay’ as prayed, but stayed the hearing pending the resolution of disputes which the Respondent had taken issue with. An application for review was filed by the Respondent in terms of the Rules. Applicant opposed the application. This meant that both parties were given the opportunity to ventilate the issues bedeviling the misconduct hearing. As propounded by BHUNU JA, this is the purpose of the industrial court to ‘resolve real issues between the parties’. It is thus my considered view that there are no prospects of success on appeal and the application ought to be dismissed.

In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with no order as to costs.

Gill, Godlonton & Gerrans-	Applicant’s legal practitioners Mundia & Mudhara-	Respondent’s legal practitioners.