Zimbabwe National Association for Mental Health v Authur Matopodzi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/528/2016
HARARE, 21 JUNE 2016
CASE NO. LC/H/528/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/528/2016

HARARE, 21 JUNE 2016			     	    CASE NO. LC/H/143/16

AND 9 SEPTEMBER 2016

In the matter between:-

ZIMBAWE NATIONAL ASSOCIATION FOR				Applicant

MENTAL HEALTH

And

AUTHUR MATOPODZI							Respondent

Before Honourable L. Hove, Judge

For Applicant	Mr B Furidzo (Legal Practitioner)

For Respondent	Mr T Chigubhu (Trade Unionist)

HOVE, J:

This is an application for review as well as an appeal against the decision of the arbitrator.

The grounds for review are;

That the honourable arbitrator grossly erred at law in proceeding to determine the matter without the parties having gone through conciliation proceedings in terms of the law.

The arbitrator grossly erred in proceeding to determine the matter without giving an opportunity to the parties to make oral submissions in support of the written submissions.

The respondent in their notice of response denied that the arbitrator had erred as alleged.  It was submitted that the parties had gone through conciliation proceedings.  It was submitted that the parties were called for a pre arbitration hearing and the parties were called to a pre arbitration hearing where the parties agreed to submit their written heads of arguments.

In arguments, both parties indicated that they would abide by their papers filed of the record and the court was asked to decide the matter on the basis of the papers filed as of record.

The parties filed heads of arguments in relation to the appeal and it appears the application for review was abandoned.  Even if the applicant had not intended to abandon its review application, it failed to substantiate its allegations as nothing was placed before the court to substantiate its allegations that the parties had no opportunity for conciliation and further that the arbitrator had failed to hear the parties before deciding the matter.

The application for review has not been proved and must fail.

The Appeal

The grounds of appeal are

The arbitrator grossly misdirected herself in making a finding that the respondent had assumed a permanent employee status.  Such a finding was grossly unreasonable in the circumstances.

|The honourable arbitrator grossly erred in holding that the respondent had been unfairly dismissed by the appellant.

The respondent in their notice of response raised a preliminary issue as follows;

The grounds of appeal do not raise a question of law as required in terms of section 98 (10) of the Labour Act [Chapter 28:01].

Over and above the preliminary issue raised, the respondent submitted that the arbitrator had not erred as the evidence established that the respondent was a permanent employee of the appellant and further that; the 2nd ground of appeal was too vague and generalized.  In any case it was denied that the arbitrator erred in this or any regard.

I will deal first with the issue of whether or not the 2nd ground of appeal is detective as it is too vague and generalized.

In the case of S v MCNAB 1986 (2) ZLR 280 the then Chief Justice held that

“an appeal must set out clearly and specifically the ground of appeal.  That which the appellant is attacking in the judgment ……….. must be set out.  A generalization ……. is not good enough.  It does not point out where the Magistrate erred or misdirected himself.”

In R v Emerson & Ors 1958 (1) SA 442 the court held that,

“If the ground of appeal is that the Magistrate erred in law, this could be stated and the particular mistake in law … should be set out…”

On the basis of the above two authorities, it is clear that the appellant’s second ground of appeal is too generalized.  It fails to set out clearly and specifically that which the appellant is attacking.  It sets out no particular mistake by the arbitrator.  It is therefore vague and too generalized as submitted by the respondent.

The ground is therefore not a proper ground of appeal and must be struck out.

Whether or not the remaining ground of appeal is raising any point of law?

The first ground of appeal is challenging the factual findings by the arbitrator it is now trite that when challenging the factual findings by an arbitrator, the allegation must be made that the factual findings by the arbitrator were so grossly irrational that no sane person having applied their mind thereto could have come to such a conclusion.

See the case of National Foods v Magadza SC 105/95

Reserve Bank of Zimbabwe v Carrine Granger & Anor SC 34/2001

Hama v National Railways of Zimbabwe 1996 (1) ZLR 664. (S)

The ground of appeal is in my opinion raising only issues of facts and does not make the necessary allegation as stated in the Reserve Bank case (supra) that the misdirection on facts was so grossly irrational that no sensible person could have arrived at such a conclusion and that the misdirection was so gross it amounted to a misdirection on a point of law.

See also the case of Sable Chemical Industries v Easterbrook 2010 ZLR (2) 342.

What is or what is not a question of law has been decided by our courts before

In the case of

South Africa and Ors v Press Corporation of South Africa 1992 (4) SA 791 (A) a question of Law was defined as;

“the term “question of law” is used in three distinct senses

first,

It means a question which the law itself 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.

Second,

It means;

“a question as to what the law is:

Thus, an appeal on a question of law means an appeal, in which the question for argument and determination is what the law is on a certain matter.

Third,

Is about the issues in the province of a Judge not jury.”

See also

Mutsuta & Anor v Cagar Pvt Limited SC 47/09

Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)

In Central African Building V Rangise & Ors SC 112/04

Sandura JA also affirmed the position that a question of law is used in 3 distinct though related senses.  First it means a question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit.  And second it means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter.

I do not believe that the question raised by the first ground of appeal in easy is seeking to raise what the true rule of law is it seeks to challenge the factual findings made by the arbitrator and appeals of that nature are specifically prohibited in terms of Section 98 (10) of the Labour Act.

I am of the view therefore that the appellant’s first ground of appeal is not raising any question of law.  The second ground fails on the ground that it’s vague and too generalized.  In the circumstances, the following order is made.

Order:

Appeal be and is hereby dismissed with costs.

The application for review also fails with costs for lack of merit. `

Kanokanga & Partners, applicant’s legal practitioners