ZESA Holdings (Pvt) LTD V Itayi UTAH

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/01/2016
HARARE, 25 NOVEMBER, 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/01/2016

HARARE, 25 NOVEMBER, 2015 			     CASE NO. LC/H/318/15

AND 08 JANUARY, 2016

In the matter between:-

ZESA HOLDINGS (PVT) LTD		-	Applicant

And

ITAYI UTAH				-	Respondent

Before Honourable L.M. Murasi, Judge

For Applicant	-	Advocate S.M. Hashiti

For Respondent	-	Ms C. Mahlangu (Legal Practitioner)

MURASI J:

This is an application for leave to appeal to the Supreme Court in terms of section 92 (F) (1) of the Labour Act [Chapter 28:01].

Applicant is dissatisfied with the decision of this Court and intends to seek relief from the Supreme Court.  The intended grounds of appeal are as follows:

The court a quo erred in not concluding that in terms of the award rendered by Mr Bvumbe, the date of retrenchment was the date of that award and that respondent’s entitlements could only be computed up to the date of that award.

A fortiori, the Court a quo erred in upholding the arbitral award by Mr Manase, which deemed respondent to be still in appellant’s employ and so erred when regard is had to the fact that respondent had at any rate repudiated his position by immigrating to the United Kingdom.

It having been common cause that respondent had already been paid by appellant and accepted the payment thereof, the court a quo erred in not determining what was to happen with such payment and in not taking into account in its conclusion.

The Court a quo erred in not concluding that once respondent accepted the package even on an alleged without prejudice basis, he thereby lost the right to enforce rights other that those flowing from the agreed package.

The Court a quo erred in upholding an arbitral award which requires appellant to pay respondent in the United States of America dollars at a rate which was never contractually agreed on without justifying reliance on the rate.

Mr Hashiti for applicant stated that he abided by the detailed heads of arguments filed of record.  He submitted that in order to reach finality in the matter, it had to be referred to the Supreme Court for that Court to make the final and binding decision.  He further submitted that Mr Manase’s arbitral award was contrary to that given by Mr Bvumbe to the extent that it amounted to overriding another arbitrator’s award. Mr Hashiti stated that the fact that respondent had accepted part payment, this amounted to waiver and he could not proceed to recover from applicant what he terms were his dues arising from the employment relationship.  Mr Hashiti further argued that the decision by Mr Manase tended to set aside the decision by Mr Bvumbe.  It was stated that Mr Manase had not taken the facts of the matter into account with the effect that this resulted in a double payment to the respondent.  Mr Hashiti also referred to the issue of the currency issued in arriving at the figure concerned.

Ms Mahlangu for the respondent, stated that the applicant was seeking to introduce matters which were not before the Court on appeal.  It was submitted that applicant was raising issues on quantification which were not the subject of appeal before the Court.  Ms Mahlangu stated that the respondent had applied for quantification before Mr Manase and applicant had not opposed this.  The award in that quantification process was later registered with the High Court and the applicant had not opposed it.  The only appeal that was heard before the Labour Court did not involve issues of quantification and it was alleged applicant was bringing those issues before Court when originally they had not been placed before the Court.  Ms Mahlangu further stated that the terms of reference before Mr Manase were very clear and there was no misdirection on his part.  To this end, it was argued that there were no legal issues to be determined by the Supreme Court and the application was made in order to “buy time”.

It is trite that in making determinations in such applications the main issue is whether the applicant has prospects of success on appeal.  The appellate court will interfer with a lower court’s decision if it is found to be irrational, that is, where signs of gross misdirection are clearly evident.  Where there is a gross misdirection in the facts, an appellate court is entitled to interfer with the decision.

Having stated the above parameters, the Court will proceed to consider applicant’s grounds of appeal and assess the prospects of success on appeal.  The first ground of appeal avers that the Court erred in not concluding that in terms of the award rendered by Mr Bvumbe the date of retrenchment was the date of that award and that respondent’s entitlements could only be computed up to the date of the award.  What should be put into perspective is that what was before this Court was an appeal against Mr Manase’s arbitral award.  The appeal alleged that Mr Manase’s award was wrong in alleging that Mr Bvumbe’s award was “inconclusive”.

It was further alleged that Mr Manase’s award was wrong in changing the agreed date of termination of employment from the date of termination of employment from the date of arbitrator Bvumbe’s award.  Applicant’s ground of appeal to the Supreme Court really tries to cloud issues.  This Court’s judgment at page 5 thereof clearly refers to Arbitrator Manase’s finding in respect of Arbitrator Bvumbe’s finding.  After having found that the parties had not agreed on every item Arbitrator Bvumbe informed the parties to hold further negotiations.  If there was agreement, Arbitrator Bvumbe could not have told them to further negotiate.  Arbitrator Manase was alive to this and stated that the parties were aware of the shortcomings of Mr Bvumbe’s award.  This Court addresses the point on page 6 of the judgment.  The averment therefore that there was a date in Mr Bvambe’s is erroneous to say the least and the Supreme Court is unlikely to find in favour of the applicant on this point.

The second ground of appeal avers that the Court erred in upholding that respondent was still in the employ of the applicant when he had repudiated his contract by moving to the United Kingdom.  I take it that the issue of repudiation of contract is the one which the Supreme Court is supposed to consider on appeal.  Does this amount to a question of law?  I have doubts that the Supreme Court will find this to be a question of law for its determination.  In any event as this Court found as reflected in the judgment the Arbitrator was enjoined to make a finding on the lawfulness of the retrenchment.  It was also found that applicant had clearly instructed respondent not to attend at the workplace.  I am of the view that there are no prospects of success on this ground.

The third ground of appeal deals with alleged payments to the respondent by applicant.  As stated by Ms Madlangu this ground of appeal relates to the issue of quantification which was not brought before this Court.  This Court did not deal with the matter on appeal.  Asked to comment on this respect Mr Hashiti was quite unhelpful.  He merely stated that he left it to the Court to make a decision on the issue.  Certainly the Court is baffled as to why this ground of appeal was included.  As to the submissions of Mr Hashiti, the Court can only regret that he shunned his first duty as an officer of the Court.  Mr Hashiti chose to stick to his “instructions” instead of assisting the Court in explaining why this ground of appeal was there in the first place when applicant was aware that the Court had not dealt with the issue of quantification.  MALABA DCJ in Ngazimbi vs Murowa Diamonds (Pvt) Ltd SC 27/13 held that the law interposed the President of the Labour Court and the Supreme Court in granting the right to appeal so as to prevent frivolous appeals getting to the Supreme Court.  I can only but agree.  Here is an applicant who is aware that this particular issue was not before the Labour Court on appeal but proceeds to include a “foreign” ground of appeal for determination by the Supreme Court. It  is trite that appeals are determined on the record. The Supreme Court will obviously not determine an issue that was not before the Labour Court and therefore there are no prospects of success on appeal on this ground.

The fourth ground of appeal avers that the court a quo erred in not concluding that once respondent accepted the package, even on an alleged without prejudice basis, he hereby lost the right to enforce rights other than those flowing from the agreed package.  What the arbitrator determined was that there was no lawful retrenchment agreement.  This by extension meant that the respondent was still for all purposes applicant’s employee.  The applicant does not understand the decision of the arbitrator.  The arbitrator states:

“It is clear that full settlement has not yet been effected.”

The arbitrator makes this finding after referring to the respondent having received payment “on a without prejudice basis”.  Arbitrator Manase refers to the inconclusiveness of Mr Bvumbe’s award which clearly stated that there was need for more discussions in order to settle the matter.  If the parties were still negotiating, how could respondent be said to have forfeited his right to recover what was due to him?  Are there any prospects of success that Supreme Court will arrive at a different decision in the circumstances? I think not.

The last last ground of appeal avers that the Court erred in upholding an award which required the applicant to pay the respondent in United States dollars.  Again, this is not a matter that was before the Court on appeal.  Similarly, when asked by the Court to make submissions on this ground, Mr Hashiti, stated that he left the matter in the hands of the Court to make the decision.  He was very unhelpful indeed.  It is clear that the ground of appeal should not have found its way into the papers.  The Court can only leave it to surmise and conjecture as to the reason for its inclusion.  Evidently the Supreme Court will not have a second glance at it as there are no prospects of success on this point.

Has the applicant discharged the onus that there there indeed are prospects of success on appeal?  I think not.  The applicant has not demonstrated that there are any prospects of success on appeal.  Applicant has not shown what the questions of law are that are specifically to be dealt with by the Supreme Court.  The applicant has not shown in what manner the decision of the Court can be described as “irrational”.  On this point I share the view of GARWE JA in Christopher Samson vs Windmill (Private) Limited SC 7/15 where he had this to say:

“The position is now settled that an appellate court has no power to interfer with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion.”

In conclusion the Court finds the application for leave to appeal to the Supreme Court to be devoid of merit and it is accordingly dismissed with costs.

Dube, Manikai & Hwacha, applicant’s legal practitioners

Munyaradzi Gwisai & Partners, respondent’s legal practitioners