ZESA Holdings (Private) Limited AND 4 Others V Zimbabwe Management Association Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/325/14
HELD AT HARARE ON 6th MARCH, 2014
CASE NO. LC/H/544/13
AND 6TH JUNE, 2014
JUDGMENT NO. LC/H/325/14
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO.LC/H/325/14

HELD AT HARARE ON 6th MARCH, 2014  CASE NO. LC/H/544/13

AND 6TH JUNE, 2014

In the matter between:-

ZESA HOLDINGS (PRIVATE) LIMITED 			    1ST Appellant

And

ZESA ENTERPRISES (PRIVATE) LIMITED		    2ND Appellant

And

ZIMBABWE POWER COMPANY (PRIVATE) LIMITED 	    3RD Appellant

And

ZIMBABWE ELECTRICITY TRANSMISSION AND

DISTRIBUTION COMPANY  (PRIVATE) LIMITED	    4TH Appellant

And

POWERTEL COMMUNICATIONS (PRIVATE) LIMITED	    5TH Appellant

And

ZIMBABWE MANAGEMENT ASSOCIATION

WORKERS UNION								Respondent

Before the Honourable G. Mhuri, Judge

For Appellants: Mr. A.K. Maguchu (Legal Practitioner)

For Respondent: Mr. B. Magogo (Legal Practitioner)

MHURI J.:

It is a trite position of the law that an appeal against an arbitral award such as this appeal must be on a question of law.

(Section 98 (10) of the Labour Act)

Aggrieved by the Arbitrator’s award, Appellant filed this appeal on the following grounds:-

“1.The Honourable Arbitrator erred in granting a claim that was not supported by any evidence at all but rather by written and oral submissions.

After acknowledging that “at the oral hearing Respondents did furnish its financial books statements of accounts, audited or unaudited,” the Arbitrator subsequently erred grossly in finding that these unchallenged financial books and statements of accounts were insufficient as proof of financial incapacity.

The Arbitrator’s finding is so grossly unreasonable such that no reasonable person correctly applying his mind to the matter would have arrived at such a decision.

The Arbitrator erred grossly both on the facts and at law in failing to consider the full extent of the financial consequences of his award on the Appellant.”

As a point in limine, Respondent submitted that the appeal is doomed to fail as it does not comply with Section 98(10) of the Act in that the first two grounds of appeal do not raise questions of law.

Section 98(10) of the Act provides in peremptory terms that an appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this Section.

What constitutes a question of law has been aptly defined by the Courts as –

(a)	A question which the law 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.

(b)	A question as to what the law is.  An appeal on a question of law means one which the question for argument and determination is what the rule of law is on a certain matter.

(c)	A question which is within the province of the Judge instead of the jury.

Per Gubbay CJ (as he then was) in the case of

MUZUVA V UNITED BOTTLERS (PRIVATE) LIMITED 1994 (1) ZLR 217 (S) G-H.

It is trite that factual findings are not appealable to this Court.  Where however there has been a serious misdirection on the facts, that amounts to a misdirection on the law and as such that decision becomes appealable.

See: SABLE CHEMICALS INDUSTRIES LIMITED V

DAVID PETER EASTERBROOK SC 18/10

where at page 5 of the cyclostyled judgment Garwe JA quoting from

HAMA V NATIONAL RAILWAYS OF ZIMBWE 1996

(1) ZLR 664 S, 670 A-B.

had this to say

“The position is also settled that a serious misdirection on the facts amounts to a misdirection in law ...”

In the case of

RESERVE BANK OF ZIMBABWE V

CORRINE GRANGER

MARTHA MATARUKA SC 34/2001 at page 5-6

Muchechetere JA (as he then was) stated,

“An appeal to this Court is based on the record.  If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision.  And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

Applying these principles stated above, I find that the Appellants’ grounds raise questions of law.  The first ground, Appellant avers that there was no evidence produced before the arbitrator which led him to make the factual findings that he did.

As regards the 2nd ground, the averment is made that the factual finding by the arbitrator that the financial books and statements of accounts were insufficient proof of financial incapacity was so grossly unreasonable such that no reasonable person correctly applying his mind to the facts would have arrived at such a decision.  Whilst this is an attack on a factual finding it will be for the Court to determine whether or not the finding is so grossly unreasonable as alleged by Appellants.

In the result, the point in limine raised by Respondent cannot be upheld.  It is therefore dismissed with no order as to costs as it was within Respondent’s right to raise the point.

Accordingly, the Registrar is directed to set down this appeal for hearing on the merits.

Dube, Manikai and Hwacha–Appellant’s Legal Practitioners

Sinyoro and Partners–Respondent’s Legal Practitioner