Alexio Mungate v Zesa Holdings (Pvt) Ltd

### Preamble
JUDGMENT
IN THE LABOUR COURT OF ZIMBABWE HARARE, 27TH FEBRUARY, 2023 AND 6TH APRIL 2023
NO.LC/H/109/23
CASE NO. LC/H/41/20
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 27TH
FEBRUARY, 2023 AND 6TH APRIL
2023

JUDGMENT
NO.LC/H/109/23
CASE NO. LC/H/41/20

ALEXIO MUNGATE
Appellant

ZESA HOLDINGS (PVT) LTD
Respondentt

Before the Honourable Kachambwa, Judge;

For Appellant: Itai Simbi (Trade Unionist)

For Respondent: T. Chisango (Labour Officer)

KACHAMBWA, J:

This case has become one of preliminary points. After disposing of the appellant’s preliminary points the respondent came up with its own preliminary point that was not in the notice of response nor in the heads of argument. As a point of law it could not be resisted. The point in law is that the grounds of appeal are new grounds, that they are therefore not permitted.

The appellant’s response initially was that they were not different. When the minutes of the proceedings were availed the response changed to say that the minutes were not a correct record of the proceedings. However the Appellant could not offer any alternative minutes and could not point where exactly the minutes were not correct except to say that what the minutes were referring to as grounds of appeal were in fact mitigation. That these were in fact mitigation is in a way correct in the sense that the appeal is basically on the penalty. However the record is quite clear that these were the grounds of appeal.


The court advised the Appellant that if there is an allegation that the minutes are not a correct record of proceedings there is need to show the errors. The Appellant gravely failed in this regard. In fact it is unfortunate that Appellant’s counsel was just arguing the point apparently without consultation with the client. In the process it became an argument that just boomeranged.

It is observed that the grounds of appeal are new. The explanation that it is in fact the record that does not reflect the previous grounds correctly is not supported by any evidence and is therefore not acceptable. The Appellant has not even sought to sift through the grounds of appeal to see if there are any grounds that can be salvaged. Rather he is adamant that the fault lay with the record of proceedings.

In the case of Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 H the principle that grounds of appeal must be consistent was laid down as follows;

“If therefore, the applicant was content to appeal against the decision of the lower body on three grounds only, he cannot, in my view, bring on review other grounds which he did not appeal against to the internal appellate body. Even if he was entitled to do so, he would not in any case succeed, because he did not make an issue of them at the hearing…….

The Applicant’s failure to raise other grounds must therefore be construed as waiver of those grounds……and it is inappropriate for such person to place before the reviewing court grounds which he did not challenge on appeal to the internal appeal panel”.

In Donnelly v Barclays National Bank Ltd 1990 (1) SA 375 w at 380 the court said that;

“Secondly it is clearly a wholly new line of defence now being taken. It was not mentioned in the summary judgment proceedings, not in the plea, it was never referred to in evidence or argument at trial. Its mere novelty, of course is no ground perse for rejecting it. However,
 2 generally speaking, a court of appeal will not entertain a point not raised below and especially not one raised in the pleadings in the court below”.

The principle was also followed in the case of **Simon Gazi v National Railways of Zimbabwe SC 60/2015** in which the appeal was dismissed. In the present case the Appellant has sought to blame the respondent for a record that does not reflect what happened. That argument has been dismissed. Consequently this court is obliged to uphold the point in *limine* and dismiss the appeal.

**It is accordingly ordered that;**

1. The point in *limine* be and is hereby upheld.
2. The appeal be and is hereby dismissed.
3. The appellant shall pay the costs of suit.
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