Collen Zidumbe and 23 Others v TN Harlequin Luxaire (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/131/16
HELD AT HARARE ON 24th FEBRUARY, 2016
CASE
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/131/16

HELD AT HARARE ON 24th FEBRUARY, 2016         CASE NO.LC/H/922/15

AND 4TH MARCH, 2016

In the matter between:-

COLLEN ZIDUMBE AND 23 OTHERS				    Appellant

And

TN HARLEQUIN LUXAIRE (PRIVATE) LIMITED			    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr. J. Koto (Legal Practitioner)

For Respondent	:	Mr. P. Mutukwa (Legal Practitioner)

MHURI J.

The law that governs appeals to this Court against arbitral awards is very clear.

Section 98(10) of the Labour Act [Chapter 28:01] provides,

“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 is an appeal against an arbitral award filed in this Court by the Appellants.  Does the appeal in its grounds comply with the above provision?  Respondent’s answer to this question is that, it does not, hence it has raised a point in limine to that effect.

Appellant’s grounds of appeal are as follows:-

The arbitrator erred at law in concluding that the existence of National Employment Council required that Appellants refer their disputes to the National Employment for Resolution.  The matter could only be referred to the National Employment Council and not to a Labour Officer if there were any designated Agents for the National Employment Council.

The arbitrator erred at law in failing to recognise that the need to exhaust domestic remedies was open to some exceptions.

The arbitrator erred at law in failing to find the existence of reasonable grounds for not insisting on the exhaustion of domestic remedies when it was clear that :

“The wrongs and irregularities complained of could not be corrected through the Appeal system provided for under the code.

The Appellants were never served with notices of hearing and or determination and as such had not been informed of their rights to appeal and where to appeal to.

In any event the appeal system was not capable of correcting the irregularities and wrongs complained of.

The hearings were never held in accordance with the provision of the code in question.

The National Employment Council in question no longer entertained any appeals or matters from the respondent following respondent’s withdrawal from the National Employment Council and as such there was no longer any domestic remedy for Appellant to exhaust.”

What constitutes a question of law has been discussed times without number by the Courts in this jurisdiction.

See:	NATIONAL FOODS vs STEWARD MUGADZA SC 105/95

RESERVE BANK OF ZIMBABWE

vs

CORRINE GRANGER & ANOTHER SC 34/2001

NORMAN MUTSUTA & TONDERAI KATSANDE

vs

CAGAR (PRIVATE) LIMITED SC 47/09

The term is defined as:-

“……………..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 true rule of law is on a certain matter.

And third, …….”

In the case of National Foods Limited (supra) it was stated

“…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 constitutes a failure to hear and determine according to law.”

In the Reserve Bank of Zimbabwe case, (supra) the Court had this to say;

“An appeal to this Court is based on the record.  If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision …..”

In the case of 	FLORENCE CHINYANGE

vs

JAGGERS WHOLESALERS SC 24/04

GWAUNZA JA commented as follows, when she was dealing with the issue whether an appeal was on a question of law or not.

“It is trite that an appeal to this Court, from a decision of the Labour Court, should only be on a question of law.  The Appellant must in other words not only allege, but also show, that the Labour Court misdirected itself on a point of law.”

Despite the fact that Rules of this Court Statutory Instrument 59 of 2006 do not specifically provide that grounds of appeal must be clear and concise, a party cannot be allowed to file grounds which are ambiguous and difficult to comprehend.  This is particularly not expected from legal practitioners.

In casu, I am in agreement with the Respondent’s legal practitioner in his submission that Appellant’s grounds of appeal are vague, clumsily worded and incapable of comprehension.  Ground 2 is too generalised and makes it difficult to understand exactly what it is about the Arbitrator’s finding Appellant is aggrieved by.  On one hand one might think it is a review ground and on the other, fails to see the point of law being raised therein.

Ground 3 is equally vague.  From the the sub-items it can be concluded that these are complaints against factual conclusions.  These cannot be appealable against unless there is an averment that the conclusions were so grossly unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision.

In his oral submissions Appellant’s legal practitioner tried very hard to persuade this Court by explaining each and every ground in a bid to show that there is a point of law raised in the grounds.  The Court was not persuaded.  The grounds as they stand must show that they are on a question of law.  They must be clear and concise.  The point of law must be ex facie the grounds, alleged and shown therein.

As submitted by Respondent’s legal practitioner, the grounds must go beyond just generalized expressions of unhappiness against the findings of a judicial officer.

In the result, I find that Respondent’s points in limine were well taken and to that end I uphold them.

Consequently, the appeal is hereby struck off with costs.

Koto & Company – Appellant’s legal practitioners

Musengi & Sigauke – Respondent’s legal practitioners