Ventlodger Mapfirakupa v Nedbank Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/206/2020
HARARE, 04 AUGUST, 2020
CASE NO. LC/H/164/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/206/2020

HARARE, 04 AUGUST, 2020			     CASE NO. LC/H/164/19

AND 25 SEPTEMBER, 2020

In the matter between:

VENTLODGER MAPFIRAKUPA						APPLICANT

Versus

NEDBANK ZIMBABWE LIMITED					RESPONDENT

Before Honourables C. Kachambwa; & G. Musariri, Judges

For Appellant:			T.H. Gunje (Legal Practitioner)

For Respondent:			S Sadomba (Legal Practitioner)

KACHAMBWA J:

Judgment on Point in limine

In this appeal the respondent raised a point in limine to the effect that ground of appeal No 1 was not a ground of appeal but one of review.  The grounds read-

The Hearing Authority erred procedurally in inviting the parties to file closing submissions immediately after the closure of the Complainant’s case without putting the Appellant to his defence and allowing him to be cross- examined.

The Hearing Authority erred at law in retaining a verdict of guilty in the absence of evidence on a  balance of probabilities to that effect seeing as:

There were clear circumstances not attributable to Appellant that led to the negative NOSTRO gap.

The relationship between Appellant and his subordinate (ALBERT CHAPATARONGO) did not give rise to any violation of the law.

The transactions involving the bank’s customers did not give rise to ant conflict of interest.

The Hearing Authority erred in passing an excessive penalty regard being had to the circumstances of the case and the mitigating circumstances of the Appellant which he did not considered.

The appellant consented that it is indeed a ground of review but also argued that it is a ground of appeal regard being had to its effect.  He argued that its effect is that a wrong decision was arrived at therefore that decision has to be appealed.  He also argued that it was not impudent to file an appeal and a review at the same time and therefore it was correct to file it under an appeal.

The respondent insisted that the ground was a ground of review.  Further the respondent pointed out that the rules of this Court do infact provide for the filing of an appeal and a review at the same time.  The effects of the two are different and this ground of appeal squarely falls on the side of the review rather than appeal.  At the same time it was also argued that the ground could not be raised as the appellant was content with the procedure as adopted.  In other words appellant waived his right to present his defence case.  To this the appellant admitted to having allowed the chance to pass but said it did not appreciate the possible adverse effect at that time.

It is indeed correct that the first ground of appeal is a review ground.  The attempt to sanitise it so that it can also be a ground of appeal is ill conceived.  The

effect of that ground is not a final decision.  It would call for either a rehearing so as to allow the appellant to present his case or allowing the appellant to present his case before this court.  The later would be rather unlikely. Either way is in line with a review.  At the same time the rules indeed provide for filing of both an appeal and a review. Therefore the appellant cannot be heard to say that that cause was not impudent.  It is infact what the law requires.

On the issue of waiver the appellant literally accepts that but bemoans that waiver has infact resulted in an adverse result.  Unfortunately that cannot be a reason for resuscitating a right that one would have given up.

In the circumstances the point in limine is upheld.  The appeal must continue on the remaining grounds.

It is ordered that

the point in limine be and is hereby upheld.

the first ground of appeal be and is hereby struck off.

the appeal shall proceed on its remaining grounds of appeal.

C KACHAMBWA

J-U-D-G-E

I agree				G. MUSARIRI

J-U-D-G-E