Zimbabwe Manpower Development v Albert Ndoro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/28/2016
HARARE, 15 JANUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/28/2016

HARARE, 15 JANUARY 2016			CASE NO. LC/H/APP/643/15

AND 22 JANUARY, 2016

In the matter between:-

ZIMBABWE MANPOWER DEVELOPMENT		Applicant

And

ALBERT NDORO						Respondent

Before Honourable L. Kudya, Judge

For Applicant		S. Nyagura (Legal Practitioner)

For Respondent	A. Chambati (Legal Practitioner)

KUDYA, J:

This is an application for leave to appeal to the Supreme Court against this court’s judgment on a point in limine which ruled that the appeal grounds raised by the then appellant indeed made out points of law worthy of being decided upon by the Labour Court.

The background to the matter is that the employee appealed to the Labour Court against an arbitral order made against him in a case which pitted him and the employer. When appeal came up for argument the employer raised a point in limine that the grounds which the employee sought to rely on in his appeal did not fit in with what is legally acceptable as a point of law.

Argument was presented by both parties on that point and the court ruled in its judgment of 18 March 2015 that the objection by the employer was ill placed.  In the court’s view the grounds of appeal indeed raised points of law.  To that end the matter had to be set down for argument on the main merits.  Instead of proceeding to a hearing on the merits the employer made the instant application where it is seeking this court’s leave to allow it to proceed on appeal to the Supreme Court against the ruling on the preliminary point.  The respondent is opposed to the application.  He maintains that the leave application is not merited at all but is a calculated move to delay the conclusion of the appeal on the main merits.  He thus prayed for the refusal of leave to appeal in this case.

The test for such applications is settled.  See St Johns Educational Trust v Gardener SC – 161 – 08 and Dombodzvuku vs CMED SC – 31 – 12.

The two basic tenets are whether there is any point of law that the Superior Court will be called upon to address and whether there is an arguably merited cased on appeal.  The cumulate effect of the tests is what will rule the day.

Applying the cited law to the facts of the case at hand it is important to note that:-

In the appeal from arbitrator the employee raised issues about onus which essentially is a legal point and it is what employer argued should not be taken on appeal.  If the issue of onus is not a point of law one then wonders what else can qualify as such.  To this end it is clear that that the point in limine was ill placed and on account of this point there is no cogent basis for referring such an issue to the Supreme Court.

It is clear that there is no point of law which the employer intends to take up with the Supreme Court. The other evidential components which were argued by the employee were discussed at length by this court in its ruling on the point in limine.  The court is therefore not persuaded that there is any arguably merited case to be taken up to the Supreme Court on account of those facts.

It is therefore clear that the instant application does not satisfy the twofold test set out on the quoted cases.  In the result the application should fail.

IT IS ORDERED THAT

Application for leave to appeal to the Supreme Court being without merit it be and is hereby dismissed with costs.

Matsikidze & Mucheche, applicant’s legal practitioners

Chambati, Mataka & Makonese, respondent’s legal practitioners