City of Harare v Jabulani Mbetu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/247/2016
HARARE, 9 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/853/2015
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/247/2016

HARARE, 9 MARCH 2016 &			                  CASE NO LC/H/853/2015

13 MAY 2016

In the matter between

CITY OF HARARE								APPELLANT

Versus

JABULANI MBETU							RESPONDENT

Before the Honourable D L Hove J

For the Appellant	C Kwaramba  (Legal Practitioner)

For the Respondent     S D Chivore  (Legal Practitioner)

HOVE J:

The appellant appeals in this case against an arbitral award.

Section 98 (10) of the Labour Act [Chapter 28:01] (“the Act”) provides as follows:

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.

This section bars appeals on factual issues against decisions of arbitrators.

The appellant’s grounds of appeal number 2 and 3 raise only issues of facts and are thus not properly before this court.

Ground number 2 reads:

The learned arbitrator erred in failing to apply the 80/20% concept. It so erred in failing to realize that even as an employee uses the vehicle for business purposes there is a component of his personal use for which he must meet the cost. In failing to effect a 20% deduction the arbitrator failed to take into account a relevant consideration.

Ground number 3 reads:

At any rate the learned arbitrator failed to consider the actual value of the motor and the actual mileage for which the vehicle was in use. The figures imposed by the learned arbitrator were thump sucked.

These two grounds are indeed only raising factual conclusions arrived at by the arbitrator. Further the appellant fails to allege in the grounds of appeal themselves that there were serious or gross misdirection of fact which would lead to the misdirection being on a question of law. Such failure to allege gross misdirection is fatal to the appellant’s case in so far as its case was premised on those two grounds.

The case of National Foods Limited v Stewart Mugadza SC 105-95 makes this point clear.

It is true that the case of Barass v Chimpodah is authority for the preposition that where a tribunal fails to take into account a relevant consideration that is an error which entitles an appeal court to interfere. But the point still remains that the allegation must be made that there has been a serious misdirection in the ground of appeal itself as the case will stand or fall on the basis of its grounds of appeal.

The fourth ground of appeal is not a ground of appeal but more of a prayer and is not to be considered as a ground of appeal.

The first ground of appeal alleges gross misdirection and it reads:

The learned arbitrator grossly (misdirected) misconducted himself. The learned arbitrator failed to properly apply the AAZ rates. It so erred in that under the AAZ model the fuel component is not claimed separately.

This ground is properly before the court, see the Mugadza case (supra) which stated that:

“But clearly if there is a serious misdirection on the facts that amounts to a misdirection in law. The giving of reasons that are bad in law constitute a failure to hear and determine according to law.”

The arbitrator in casu (in this ground number 1) is alleged to have erred in failing to find that the fuel component is not claimed separately under the AAZ rates.

I have gone through the appellant’s heads of argument but I find nowhere where the appellant proves or shows the gross unreasonableness on the part of the arbitrator. The appellant does not show to the court how or why it is alleged that the arbitrator was grossly unreasonable in ordering the payment of fuel separately. AAZ rates may not claim fuel separately. But was it grossly unreasonable on the part of the arbitrator to find contrary (in this respect) to the AAZ rates. It was incumbent upon the appellant to prove its allegations clearly under this ground of appeal. It failed to establish why it alleges that there was gross unreasonableness.

The position is clear in our law that an appellant court cannot interfere with a decision of a trial court on findings of facts.

In the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 the court observed that:

“The general rule of law, as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

It is not sufficient to state as the appellant does in casu that the irrationality is self-evident. It must prove and show the court why it says there was gross irrationality in the arbitrator’s decision not to take the AAZ approach in relation to the fuel issue.

In the case of Attorney General v Howman 1988 (2) ZLR 402 the court made it clear that it was trite that an appeal court will not interfere with the exercise of discretion unless satisfied that there has been serious misdirection.

“The principle justifying interference by an appellate court with the exercise of an original discretion are firmly entrenched. If the discretion has been exercised on judicial grounds and for sound reason, that is, without caprice or bias or the application of wrong principles, an appellate court will not interfere and substitute its own decision. It is not enough that it considers, if it had been in the position of a lower court, that it would have taken a different course.”

I would also add that it is not enough that the appellant in casu is of the view that had it been the arbitrator it could have taken a different course. The appellant must show and prove that the decision not to take the AAZ rates in relation to fuel was not just wrong but grossly irrational. This the appellant has not done.

In the circumstances, the appeal cannot succeed. The following order is made:

The appeal is dismissed with costs.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Koto & Company, respondent’s legal practitioners