Edward Misihairabwi & Others v Africare Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/215/2014
HARARE, 24 MARCH 2014
CASE NO. LC/H/215/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/215/2014

HARARE, 24 MARCH 2014	    		              CASE NO. LC/H/345/13

& 11 APRIL 2014

In the matter between:-

EDWARD MISIHAIRABWI & OTHERS				Applicants

And

AFRICARE ZIMBABWE							Respondent

Before Honourable L.M. Murasi, Judge

For Applicants		-	Mr. S.T. Mutema (Legal Practitioner)

For Respondent		-	Mr. F.A. Rudolph (Legal Practitioner)

MURASI J:

At the commencement of the hearing, the Parties agreed that the Court could proceed to determine the matter on the papers filed of record as they were of the view that the issues had been sufficiently ventilated in the filed documents.  The Court proceeded to determine the matter on the basis of the filed documents.

On 14 January 2014 this Court struck off Applicants’ appeal stating that it did not comply with section 98 (10) of the Labour Act in that the grounds of appeal did not amount to points of law.  Applicants seek to approach the Supreme Court as they are dissatisfied with the ruling.  This is an application for leave to appeal in terms of section 92F (2) of the Labour Act.

The grounds of appeal raised by Applicants are as follows:

The Court a quo grossly erred and misdirected itself on legal issues by holding that the Appellants (Applicants) only raised points of fact which do not amount to points of law on its grounds of appeal.

The Court a quo grossly erred and misdirected itself in fact to the extent of arriving at grievous error at law by deciding that the notice of appeal before it did not show which particular principle of law the Appellants wished to challenge.

The Court a quo grossly misdirected itself by holding that the factual error in the Arbitrator’s reliance on the decision made in the case of DAVID SHAYAMANO VS COLLABORATIVE RESEARCH LC/H/188/2008 did not amount to a grievous error in law.

It is trite that the approach in such matters is to assess whether there are reasonable prospects of success on appeal.  The Court, in making this determination, should be wary of putting too much confidence in its own judgment but to verify whether there is a reasonable prospect of the Supreme Court arriving at a different judgment from the same facts.  It is also a truism that the Supreme Court will interfere with this Court’s decision where there is an irregularity or misdirection and where the decision arrived at is so unreasonable in the sense that no reasonable court would have arrived at such a decision on the same facts.

The Court will now consider the grounds of appeal in turn.  Applicants submit that the Court erred grossly and misdirected itself in holding that Applicants only raised points of fact which do not amount to points of law.  I will refer to my judgment wherein it stated that the “arbitrator came to the conclusion, on the facts that they had no legitimate expectation.” The Applicants had stated in those grounds of appeal that the arbitrator “erred in law by holding that, the Appellants did not have legitimate expectation in being re-engaged.”  The finding by the arbitrator was after an assessment of the available evidence.  As stated by GARWE JA in SABLE CHEMICAL INDUSTRIES LIMITED VS DAVID PETER EASTERBROOK SC 18/10 at page 10 of the cyclostyled judgment:

“For example in a criminal case, whether the facts as proved establish mere theft or robbery is a question of fact and not law.”

In casu, whether the evidence addressed amounted to proof that the Applicants had a legitimate expectation was a factual issue.  It would have been different had the Applicants stated that the arbitrator had failed to appreciate the principle of legitimate expectation.  The failure to appreciate and understand a legal principle would of necessity amount to a legal issue and therefore appealable if properly pleaded.  As stated in the MUZUVA CASE, “question of law” is used in three senses.

It means:

“a question which the court 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.”

“a question as to what the law is – meaning what the question is for argument and determination as to what the true rule of law is on a certain matter.”

“any question which is within the province of the Judge instead of the jury is called a question of law.”

The Court identifies the second point made in the MUZUVA CASE as applying to this case. Having regard to the points identified and the ground of appeal in respect of legitimate expectation, the Court finds that the Applicants have not shown in what respect or what principle of the law the Court is being asked to consider.  It would appear the Applicants were inviting the Court to substitute its own decision for that of the Arbitrator.  This was clearly a wrong approach.  Applicants were expected to point to points of law arising from the arbitrator’s supposedly erroneous decision for this Court’s determination.

The second ground of appeal avers that the court fell into error at law by deciding that the notice of appeal before it did not show which particular principle of law the Applicants wished to challenge.  The Court is of the view that the issues raised here are not different from those in the first ground of appeal.  The Court drew the attention of the Applicants to the precedent set in the MUZUVA CASE, that points law should be clearly identified for the Court to determine.  It is not for the Court to embark on a “fishing expedition” in order to find out what principle of law it is supposed to determine.  Grounds of appeal must be clear and specific.  The Court gives the following as clearly unspecific grounds.  The fifth ground of appeal read as follows:

“By denying the allowance to be paid in terms of the contractual agreement the arbitrator made an error of law. His reasoning that the handbook was not approved is neither here nor there.  The employer made it part of the contract of employment, therefore the parole evidence rule and the caveat subscripto to rule are applicable.”

The finding by the arbitrator that the handbook was not approved was a factual issue.  However, Applicants state that it is “neither here nor there.”  Such an averment leaves the Court in a quandary as to what Applicants’ position on the finding are.  Applicants then go on to state that “the parole evidence rule and caveat subscripto rule are applicable.”  Applicants do not go to state in what manner there principles are applicable to the finding of fact made by the arbitrator.   What point of law are Applicants raising in respect of that finding?  I stated in my judgment that reference to the fact that the arbitrator “erred in law” does not necessarily mutate a point fact into a point of law.  As already stated above, grounds of appeal must be clear and specific.

The third ground of appeal is that the court grossly misdirected itself by holding that the factual error in the Arbitrators reliance on the decision made in the case of DAVID SHAYAMANO VS COLLABORATIVE RESEARCH LC/H/188/2008 did not amount to a grievous error in law.  This ground of appeal does not reflect what is contained in the record.  My judgment, sought to be appealed against does not in any way make reference to the case cited in the ground of appeal.  In the absence of a finding in this respect by the Court, the Court is not in a position to address it.

As stated earlier in this judgment, the approach in considering an application for leave to appeal is whether there are prospects of success on appeal.  Secondly it should also exercise the mind of the Court whether the Supreme Court will find the decision of the Court a quo so unreasonable as to vitiate the decision made.

The Court is of the view that the grounds of appeal against the decision of the arbitrator are not on points of law and thus there are no prospects of success on appeal.

In the result, the application for leave to appeal in terms of section 92F (2) of Labour Act is hereby refused.

GUNJE & CHASAKARA LAW FIRM - Applicants’ legal practitioners

SCANLEN & HOLDERNESS - Respondent’s legal practitioners