Gednala Chimchembere v Zenji Trading t/a Save Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/68/2021
HARARE, 26 MARCH 2021
CASE NO. LC/H/07/20
AND 18 JUNE 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/68/2021

HARARE, 26 MARCH 2021 				CASE NO. LC/H/07/20

AND 18 JUNE 2021

In the matter between:

GEDNALA CHIMCHEMBELE						APPELLANT

versus

ZENJI TRADING t/a SAVE CENTRE					RESPONDENT

Before The Honourable Makamure J

For the Appellant			: Mr Magodi (Trade Unionist)

For the Respondent			: Mr C. Mavhondo (Legal Practitioner)

MAKAMURE J:

This is an appeal against the dismissal of Appellant from the Respondent’s employ. Before the appeal could be argued, a preliminary issue was raised on behalf of the respondent. The issue raised is that grounds of appeal 1 to 6 and 8 do not raise points of law. It was submitted on behalf of the respondent that these grounds are not properly before the court. The respondent also submitted that there has not been an allegation that there was a misdirection on the part of respondent. Authorities were cited in support of this submission. The court is grateful for the authorities cited.

The appellant in response to the preliminary issue raised, argued that the respondent approached the court with ‘dirty hands’. Despite probing from the court, for the need to make specific reference to the issue raised, nothing much was said about whether or not the grounds of appeal in question raise points law.

The question of what constitutes a point of law, as correctly pointed out by Mr Mavhondo who appeared on behalf of the respondent, has been stated and restated by the Supreme Court on numerous occasions. A question of law must be answered by the law. In Muzuva v United Botllers (Pvt) Ltd 1994 (1) ZLR 217 (S) the Supreme Court stated that:

“The term “question of law” is used in three 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 in accordance with what is considered to be the truth and justice in 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, any question which is within the province of the judge instead of the jury is called a question of law.”

In Reserve Bank of Zimbabwe v Granger and Anor SC 34/01 the Supreme Court stated as follows:

“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. And a misdirection on the facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

The appellant raised eight grounds of appeal as follows and I quote:

“1.	The Respondent approached the Negotiating Committee with dirty hands by not

complying with the decision of the Local Joint Committee.

2.	The Negotiating Committee erred at law by not observing that the Applicant was neither on suspension nor did the Respondent pay his outstanding salaries from the date the Local Joint Committee reinstated the Respondent.

3.	The Negotiating Committee erred at law by not taking into consideration that the Applicant was dismissed by the Respondent, appealed against that decision and the Local Joint Committee reinstated the Applicant without loss of salary and benefits.

4.	The Negotiating Committee erred at law by not observing that the Respondent ignored to implement the Local Joint Committee’s decision but instead chose to summon the Applicant to a disciplinary hearing.

5.	The Negotiating Committee erred at law by not accepting the letter written by the Applicant to the Respondent advising him of his wiliness (sic) to resume duty. Because he was mindful that the criminal court had prohibited him from interfering with the witnesses (employer).

6.	The Negotiating Committee misdirected itself by accepting that the letter written by the Applicant of wiliness (sic) to resume work as a condition to come back to work.

7.	The Negotiating Committee erred at law by allowing Respondent averments without evidence that the Applicant admitted being absent from duty.

8.	The Negotiating Committee misdirected itself by setting aside the Local Joint Committee’s decision without proper evidence and justification, because the matter dealt with by the Negotiating Committee was different from the one dealt with by the Local Joint Committee.”

It is necessary that grounds 1 – 6 & 8 be measured against the guidance in the Muzuva case (above) and other authorities The appellant in the grounds of appeal narrates what the Negotiating Committee did and some of the communication between the parties. No questions of law are raised although the appellant has averred that the Negotiating Committee “erred at law”. Commenting on the use of the phrase “erred at law” the Supreme Court stated that some grounds are couched in such manner as to aver an error at law when this is not the case. The Supreme Court urged litigants to desist from that practice. See Jainos Zvokusekwa v Bikita Rural District Council SC 44/2015; Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10.

It is clear from the grounds of appeal in question that they do not meet the standard set by authorities.

In view of the foregoing, I am of the view that there is merit in the preliminary issue raised. This means that grounds 1 – 6 and 8 are not properly before the court.

The preliminary issue be and is hereby upheld.

The main matter is to proceed as soon as practicable, on the merits, on ground seven (7) only.

It is accordingly so ordered.

Mhishi. Nkomo Legal Pracatice, Respondent’s Legal Practitioners