Viola Musariri v Zimbabwe Institute of Management

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/469/16
HELD AT HARARE ON 11TH MAY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/469/16

HELD AT HARARE ON 11TH MAY, 2016 	    CASE NO. LC/APP/H/639/15

AND 5TH AUGUST, 2016				    X REF: LC/H/705/14

In the matter between:-

VIOLA MUSARIRI							    Applicant

And

ZIMBABWE	 INSTITUTE OF MANAGEMENT 			    Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr T Chagudumba (Legal Practitioner)

Respondent	:	Mr T J Mafongoya (Legal Practitioner)

MHURI J.

This is an application for leave to appeal to the Supreme Court against this

Court’s judgment of the 8th May, 2015.

Appeals to the Supreme Court such as this one, are to be premised on questions of law.  This is trite.  Section 92F (1) of the Labour Act [Chapter 28:01] is clear on this position.

In order for this court to determine whether the appeal is based on questions of law, it has to look at the grounds as contained in the draft notice of appeal to the Supreme Court.  I am therefore not persuaded by Applicant’s submission that it is not necessary to file a draft notice of appeal together with the application.

Applicant’s draft notice of appeal to the Supreme Court is filed of record.  The grounds (2) of appeal therein stated read as follows:-

“1.	The court aquo made a serious misdirection on the facts which amounts to a misdirection in law when it held that Appellant was a part of a check and balance process and was supposed to ensure that all was above board before endorsing her signature for the release of funds and in holding that Appellant was not a mere rubber stamper.

2.	The Court aquo made a serious misdirection on the facts which amounts to a misdirection in law when it held that the Arbitrator erred in making a finding that the dismissal was not substantively fair when he did not make a ruling on the second count which also formed the basis of the charge.

This is so because the issue of the second count was not an issue before arbitration.”

It is a trite position of the law that factual findings are not appealable to the Supreme Court unless there is an allegation that there was a gross misdirection on the facts that amounts to a misdirection on the law or that the decision reached by the court aquo is irrational.

TREGER INDUSTRIES (PRIVATE) LIMITED

vs

WOODRECK SIBANDA

PAUL MAGONDO SC 22/12

In casu, Applicant is challenging this Court’s factual findings.  The factual findings complained of are they so irrational, so outrageous in their defiance of logic or acceptable morale standards to warrant interference by the Appellate court?

Applicant takes issue with the Court’s finding that she was part of check and balance process and was not meant to be a rubber stamper.  With the evidence on Applicant’s duties, which evidence was placed before the Disciplinary Authority and considered by the Court, I do not believe that the Appellate Court will interfere with the Court’s findings.  It is common cause that Applicant had the duty of signing and releasing funds after other officers had originated the request documents.  Some of these documents were not proper documents, but disregarding this, Applicant signed for the release of the funds.

It is also an established principle of the law that an Appellate Court will not interfere with the exercise of discretion by the employer.

CIRCLE CEMENT (PRIVATE) LIMITED

vs

CHIPO NYAWASHA SC 60/03.

In casu, it is not in dispute that Applicant faced 2 (two) charges.  The first one had two counts.  She was found guilty of the first charge which had two counts.  She was found not guilty of the second charge.

Aggrieved by the verdict and penalty she took her matter further, up to arbitration.  A reading of the arbitration proceedings clearly shows that no submissions were made by her on the second count.  She only submitted on the first count leaving the second count unchallenged.   By not challenging the second count, this count remained extant.

In view of this, I do not see the Appellate Court impugning this Court’s findings as Applicant would like it to, in her second ground of appeal.

I am persuaded by Respondent’s submissions that Applicant’s intended appeal to the Supreme Court does not enjoy any prospects of success at all.

That being the case, leave to appeal cannot be granted.

In the result the application for leave to appeal to the Supreme Court is hereby dismissed with costs.

ATHERSTONE & COOK – Appellant’s legal practitioners

MATSIKIDZE & MUCHECHE – Respondent’s legal practitioners