Travelport Zimbabwe (Private) Limited V Faith Mupangani (N.O.) & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/237/2023
HARARE, 25 JULY 2023 & 9 AUGUST 2023
CASE NO LC/H/1101/22
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 25 JULY 2023 & 9 AUGUST 2023

JUDGMENT NO LC/H/237/2023 CASE NO LC/H/1101/22

In the matter between:-

TRAVELPORT ZIMBABWE (PRIVATE) LIMITED	APPLICANT

FAITH MUPANGANI	(N.O.)	1st RESPONDENT HAZEL MAKOMVA		2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant	Ms F. Chinwadzimba (Legal Practitioner)

For the 1st Respondent	No Appearance

For the 2nd Respondent	Mr C. Mupungani	(Legal Practitioner)

KUDYA, J:

This is an application for leave to appeal to the Supreme Court. At the onset the respondent employer took 2 points that the application was ill placed. This was on account of the fact that it is referred to using the wrong section of the Labour Act that is 92F(3) instead of S 92 F(2). It is also reasoned by the employee that the intended appeal grounds do not raise points of law. In response to the points the applicant conceded the ill citation and prayed that since it is in the form of typo error it be condoned and the matter be entertained on the merits. It also prays that the typos could be cured by allowing an amendment to the effect that all the erroneous references be read to be properly couched. After hearing the parties on the points the court ruled that the points were not merited. It consequently dismissed them and indicated that the reasons for the dismissal of the points shall be included in the decision on the main merits of the leave application. These are the reasons:

MISCITATION

It is settled that if an error goes to the root of a matter that should have the effect of invalidating the proceedings upon which it is based.

In the matter at hand it is granted that there is erroneous reference to section 92F (3) instead of 92F(2) more than 3 times in the pleadings. It is the court’s view that the body of the pleadings however clearly demonstrates that what the applicant is seeking is leave to appeal. The erroneous reference does not detract from the content of the leave to appeal so it can be excused. The point therefore fails.

IMPRECISE GROUNDS OF APPEAL

It is settled that appeal grounds should be clear and concise. In the matter at hand the applicants seeks to have the Supreme Court determine among issues whether the court was correct not to determine whether or not the ruling was in breach of the right to be heard, whether on account of COVID it could be said that the employment contract was terminated by vis major, whether the grant of the award was arbitrary if regard is had to the minimum retrenchment package stipulated in Section 17 of the Labour Act, whether the court had jurisdiction to set timelines for compliance with the ruling and whether there was salary reduction by implied agreement or that  waiver operated against the employee.

The court agrees with the respondent that the grounds are inelegantly crafted but from the perspective of adhering to substance not form the court is satisfied that the nature of the grounds alone is insufficient for the court to conclude that the application for leave is a nullity. The point being without merit should therefore fail.

Having concluded the debate on the points in limine the only issue that remains is whether applicant has made out a good case for leave based on the principle of being based on a point of law and being merited on the merits. See the test for leave to appeal on Murowe Diamonds v Ngazimbi SC-27-13.

In the case at stake what is clear is that applicant was aggrieved by the conclusion of facts which the court made and hopes that the Supreme Court would view that differently. That surely is not the test on appeal. See Hama v National Railways of Zimbabwe 1996(1)ZLR 664(S). To start off the issue of the right to be heard was addressed when the court ruled on the recusal issue. The court does not envisage how the Supreme Court is expected to conclude that there was a breach of the right to be heard regard being had to the refusal by the labour officer to recuse himself. It is clear that the applicant has mixed issues and no good point of law arises out of that. The issue of the salary cut was concluded on the basis that applicant failed to demonstrate the mutual consent it referred. There was therefore no basis for the court to ask

that the order be vacated on that score. As regards the unlawful job loss the judgment also clearly explains that no due process was followed by the applicant. The court did not at all doubt that a job could be lost due to vis major but what was at issue was when such occurs how does one get relieved of their duties. The court was persuaded by the labour officers reasoning that the approach adopted by the applicant in laying the applicant off was consistent with unlawful termination hence the award of 12 months’ damages. Similarly, there is no point of law crying for the Supreme Court’s determination. Finally, the issue of the timelines to pay is indeed raised for the 1st time by the applicant and it was not argued by any party at all the fora below. It is thus inconsistent with the law. See case of Chikanda v United Touring Company SC-7-99. In the ultimate the court is satisfied that the leave to appeal application being without merit it be and is hereby dismissed with each party bearing own costs.

Mundia & Mudhara, Applicant’s Legal Practitioners

Mupangani & Muserere, 2nd Respondent’s Legal Practitioners