World Education v Phanuel Kapfudzaruwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/803/2014
HARARE, 31 OCTOBER 2014
CASE NO. LC/H/803/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/803/2014

HARARE, 31 OCTOBER 2014	              	    CASE NO. LC/APP/H/213/14

AND 05 DECEMBER 2014

In the matter between:-

WORLD EDUCATION				-		Applicant

And

PHANUEL KAPFUDZARUWA			-		Respondent

Before Honourable L.M. Murasi, Judge

For Applicant	-	Ms. P. Chakasikwa (Legal Practitioner)

For Respondent	-	Mr. Z.W. Makwanya (Legal Practitioner)

MURASI, J:

On 6 June 2014 this Court dismissed Applicant’s application for interim relief filed in terms of section 92E (3) of the Labour Act [Chapter 28:01].  Applicant seeks to approach the Supreme Court.  This is therefore an application in terms of section 92F (1) of the Act.  Applicant’s grounds of appeal are formulated as follows:

The Court a quo misdirected itself in law with regards to the prospects of success on appeal and the potentiality of irreparable harm and prejudice that will be occasioned on the Applicant if stay is not granted.

The Court a quo misdirected itself in law in holding that Applicant’s Application for Stay of Execution was meritless on the grounds that there was an employment contract extant between the parties as opposed to a one month consultancy contract.  The Court a quo completely ignored the principle of the sanctity of contract by fatally ignoring the existence of the Consultancy Agreement signed by the parties.

The Court a quo misdirected itself on the facts to the extent that no reasonable man could have reached a similar conclusion in holding that medical aid forms which were completed by the Respondent hinted that there was an employment contract and that project document outlining work up to 2015 prepared by the Respondent was sufficient proof that Applicant intended to retain Respondent till 2015.

The Court a quo failed to appreciate that even if one were to accept that what was intended between the parties was an employment contract, same did not eventually materialize and if one did materialize (which is disputed) same was novated by the Consultancy Agreement.

The Court a quo failed to appreciate that even if Respondent had been employed his contract would have been for twelve (12) months and that there was no guarantee that he would pass probation which he would have had to serve and be employed beyond twelve months.  Accordingly a finding that payment of damages for three years was in order cannot be upheld.

Applicant’s Counsel submitted that she abided by the Heads of Argument filed of record.  It was further submitted that what Applicant was required to prove was reasonable prospects of success on appeal.  It was further argued on Applicant’s behalf that there was a possibility that a different court would arrive at a different decision.  It was stated that Courts have since held that they cannot create new contracts for parties where those parties have a signed agreement.  Appellant’s Counsel further argued that the Arbitrator’s finding on the award of damages was flawed.  As far as the balance of convenience was concerned.  Applicant’s Counsel submitted that the finding that this was evenly balanced was clearly in error.

Respondent’s Counsel submitted that the application was clearly without merit and should be dismissed.  It was further submitted that the findings of the Arbitrator which were confirmed by the Court were proper findings based on the documentary evidence produced.  Respondent’s Counsel further argued that Applicant had merely repeated the points from the previous hearing without addressing the misdirection.  It was submitted that Applicant’s argument on the Consultancy Agreement was clearly based on the wrong interpretation of the law.  If as argued by Applicant, this agreement was signed on 7 February 2013, it was clearly in breach of section 12 of the Labour Act.

The approach to adopt when considering an application for leave to appeal is that it should not be based on whether an appeal is arguable or not but on its prospects of success.  Put differently, the test to be applied when considering an application for leave to appeal is whether the applicant has reasonable prospects of success on appeal.  The Court should however guard against passing a vote of confidence in its judgment.  The issue is whether there is a reasonable prospect of the Supreme Court arriving at a different judgment on the same facts.

The Court will proceed to consider Applicant’s first ground of appeal.  It is averred that the Court erred and misdirected itself in law with regards to the prospects of success on appeal and the potentiality of irreparable harm and prejudice that will be occasioned on the Applicant if stay is not granted.  Applicant submitted that it would be forced to pay an amount of US$100 296-00 resulting in it suffering irreparable harm.  It was further submitted that the delay in the hearing of the main appeal was not Applicant’s fault.  This Court addressed this issue in the following manner:

“Applicant may need to fork out a lot of money in the circumstances, but Respondent is also entitled to live and fend for his family.  Applicant has not informed the Court that Respondent has found alternative employment.  If this was so, then it would be understable that the prejudice suffered by the Respondent would be cushioned by the alternative employment.  The Court finds that on a balance Applicant has been unable to surmount this hurdle.”

The Court found that Applicant had failed to prove that the balance tilted in its favour.  Applicant, in the Heads of Argument, has repeated the same issue that the amount to be paid is a large amount without clearly pointing to the misdirection on the part of the Court.

In the second ground, Applicant submitted that the Court erred in holding the application to a meritless.  It was argued that the Court ignored the existence of the Consultancy Agreement and held that there was a contract between Applicant and Respondent.  Applicant’s Counsel sought to argue that even if the Court found there was an agreement between the parties, this was “novated” by the Consultancy Agreement, of 7 February 2013.  This was indeed an ingenious argument.  As pointed out by Respondent’s Counsel, the upholding of the Consultancy Agreement of February 2013 would see the whole contract falling foul of section 12 of the Act.  It could and cannot be upheld in terms of the law.  However, this was not what the Arbitrator found.  The Arbitrator relied on the documents produced during the hearing.  The Arbitrator was satisfied that the Respondent, had been employed for a period in excess of one month.  The Arbitrator also found that the Consultancy Agreement was prepared on the date Respondent was dismissed.  This Court did not find any misdirection on the part of the Arbitrator.  Is there a possibility of the Supreme Court coming to a different decision based on the facts and the record of proceedings?  I think not.

The third ground of appeal, alleges that the Court misdirected itself in holding that the medical aid forms which were completed by the Respondent hinted that there was an employment contract.  I believe legal practitioners as officers of the court should be in a position to be forthright and candid with matters before the Court.  A reading of the judgment of this Court does not show the Court made a finding of this nature.  Therefore what Applicant has attributed to the Court as being its finding, is incorrect.  The Court will not further address the ground of appeal.

The fourth ground of appeal is that the Court failed to appreciated that even if one were to accept that what was intended between the parties was an employment contract, same did not eventually materialize and if one did materialize (which is disputed) same was novated by the Consultancy Agreement.  This issue has been addressed elsewhere in the judgment.  The Court found the Arbitrator’s finding to be based on factual evidence produced before that tribunal.  The issue of the “novated” Agreement has also been addressed.  The Court has also found that the Supreme Court is unlikely to come to a different decision on the facts.

The last ground of appeal is that the Court failed to appreciate that even if Respondent had been employed his contract would have been for twelve (12) months and that there was no guarantee that he would have had to serve and be employed beyond twelve months.  This is a new issue that Applicant has brought before the Court.  Applicant never addressed the issue in the earlier application and accordingly the Court did not deal with it.  The ground of appeal does not emanate from the decision of the Court.  It is improperly included in the grounds of appeal as the Court is unable to deal with it.

In conclusion, the Court finds that the application for leave to appeal to the Supreme Court is devoid of merit as there are no prospects of success on appeal and it should be dismissed with costs.

KANTOR & IMMERMAN, Applicant’s legal practitioners

M.E. MOTSI & ASSOCIATES, Respondent’s legal practitioners