Godwin Takaniwa v Health Service Commission

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/123/25
ZIMBABWE HELD AT HARARE 18
MARCH 2025
CASE NO. LC/H/148/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 18 MARCH 2025

AND 19 MARCH 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/123/25 CASE NO. LC/H/148/25

GODWIN TAKANIWA	APPLICANT

AND

HEALTH SERVICE COMMISSION	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

Applicant	In Person

For the Respondent	Mr. L.T Muradzikwa

MURASI J.,

This is an application for leave to appeal to the Supreme Court against the decision rendered by this Court on the 24th of January 2025 under Case Number LC/H/1174/24 and Judgment No. LC/H/27/25. The application is brought in terms of section 92 (F) (1) of the Labour Act, [Chapter 28:01].

FACTUAL BACKGROUND

The applicant was employed as a promotions officer by the respondent at Mutawatawa District Hospital. He faced allegations of misconduct and was brought before a Disciplinary Committee. The Committee found him guilty of contravening paragraph 22 of SI 117 of 2006 which provides for, “any act of conduct or omission inconsistent with or prejudicial to the discharge of official duties”. Specifically, in that he failed to appraise his immediate supervisor, the District Medical Officer (“DMO”) about the distribution of Personal Protective Equipment to community health workers in Mutawatawa District. Secondly, the applicant was found guilty of contravening paragraph 8 of SI 117 of 2006 which provides for, “theft of, or failure to take reasonable care of,

or to account for, or making improper or unauthorized use of public moneys, or the moneys of any statutory body, statutory fund or local body”. In this regard, he collected USD 480 from Mutawatawa Guest Lodge and failed to account for the funds. Dissatisfied with the outcome of the Disciplinary Committee, the applicant sought relief from this Court, but the appeal was dismissed due to lack of merit. Now, dissatisfied with this Court's ruling, the applicant intends to appeal to the Supreme Court.

SUBMISSIONS BY THE PARTIES

Applicant’s Submissions

Mr. Takaniwa stated that he would abide by the submissions filed of record. Additionally, he highlighted two key issues he wished to address. The first issue concerned the argument presented by the respondent in its Heads of Argument, which stated that an appeal to the Supreme Court can only be made on a question of law. He cited a case decided by this Court under LC/H/360-23 and referred to paragraph 5 of the judgment wherein the Court held that Section 92 (d) does not require that grounds of appeal be on questions of law. However, the Court informed him that the case he cited pertained to a different provision of the Labour Act and was not applicable to the present application. Mr. Takaniwa agreed with the Court on this point and stated that he had no further submissions to make.

Respondent’s Submissions

Mr. Muradzikwa stated that he would largely abide by the documents filed of record. He referenced paragraph 6.2 of the Founding Affidavit on page 6, where the applicant's prospective grounds of appeal are outlined. He argued that the first ground of appeal was without merit and directed the Court's attention to page 8 of the record, where this ground was discussed. He contended that, contrary to the assertion made in the first prospective ground of appeal, the Court had indeed considered whether the order issued by Makamure J had been complied with and subsequently dismissed the appellant's argument due to its lack of merit. He further asserted that, in this context, it cannot be claimed that the Court failed to address the ground. Mr. Muradzikwa further submitted that in the Notice of Appeal to the Supreme Court, the applicant merely reiterated the grounds of appeal previously presented to the lower court. He contended that this approach is unsustainable as it invites the Supreme Court to reconsider matters that have already been resolved, without

adverting to any significant misapplication of the law by the lower court. Further, the counsel stated that he would not pray for costs, given that the applicant is a self-actor

Applicant’s Response

In responding to the respondent’s submissions, Mr. Takaniwa stated that despite his reinstatement, the respondent had not fully complied with the Court's order, particularly regarding the payment of his backpay. The Court questioned him on whether the order included a provision for backpay. He clarified that the order reinstated him to his former position. The Court further asked who had prepared the grounds of appeal, and he stated that he consulted with a lawyer who had aided him in the appeal process.

ISSUE FOR DETERMINATION

Whether or not the requirements for leave to appeal have been satisfied.

THE LAW AND ANALYSIS

The prerequisites for obtaining leave to appeal to the Supreme Court against a decision of this Court are well established in precedent. As the case law emphasizes, the consideration of the applicant’s prospects of success on appeal is paramount and the intended appeal must, as a matter of necessity, raise questions of law.

The Supreme Court’s decision in Kereke v Maramwidze and Anor SC 86-21 provides guidance on the considerations in an application of this nature. The Court referenced the case of Chikurunhe v Zimbabwe Financial Holdings SC 10-18 wherein it was held as follows:

“The party seeking leave to appeal must show inter alia that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

Similarly, in the case of Mpofu v NSSA SC 105-22, the court reaffirmed its role as a gatekeeper, tasked with filtering out applications that lack merit and prospects of success, thereby ensuring that only deserving cases proceed to appeal. The Court remarked at p. 2 as follows:

“In an application of this nature an applicant must satisfy the court that he or she has prospects of success in the intended appeal before the court can grant leave to appeal. In other words, this court performs a gate-keeping function to keep out any proposed appeals without merit. This is done in order to avoid clogging the appeals roll with cases which will not succeed.”

Having regard to the principles established in the aforementioned authorities, I shall now proceed to evaluate whether the applicant has met the requisite threshold for the granting of this application, focusing on the prospects of success and the presence of arguable points of law.

Regarding the first two prospective grounds of appeal, I am of the view that they are devoid of merit. A reading of the first ground reveals that it challenges a factual finding of this Court, specifically, whether the point in limine raised by the applicant was adequately addressed by the Committee. It is established that findings of fact only give rise to points of law in exceptional circumstances. The parameters of these circumstances were clearly articulated in the case of Bulawayo bottlers v Zikiti SC 80-01, wherein the Court held as follows:

“However, there is one qualification to that principle. Where the finding of fact is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it, such a finding of fact would be a valid ground of appeal. See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670C-E; and PFZAPU v Minister of Justice (2) 1985

(1) ZLR 305 (S) at 326E-G.”

The applicant did not argue that the factual findings of this Court fall within the category described above. On the other hand, the respondent’s counsel submitted that the Court had indeed considered this issue and subsequently dismissed the appellant's argument due to its lack of merit. I find it pertinent to quote the portion of the Court’s judgment that addresses this issue:

“The Committee found that having received the correspondence in respect of this matter, it was a ‘cleared issue’. This meant that the Disciplinary Committee had dealt with the preliminary point raised by the Appellant. From the record, Appellant could not receive any salary because he received correspondence from the Respondent that he was being placed on ‘suspension without pay.’ This therefore meant that his visit to the Salary Service Bureau was in vain. I therefore find no merit in the ground of appeal and it ought to be dismissed…”

The above excerpt reveals that the issue of dirty hands was indeed addressed in this Court’s judgment. The Court found that a letter dated 4 June 2023 effectively reinstated the applicant in compliance with the Court order. As a result, the issue of dirty hands became inconsequential, since substantial compliance with the Court order had been established. To further substantiate this position, the applicant conceded during the hearing that he had indeed been reinstated as per the letter dated 4 June, but sought to argue that there had not been full compliance with the Court order as his back-pay had not been paid. The issue of the non-payment of back pay is one that was

never before this Court. In light of this concession, the first two prospective grounds pertaining to the non-compliance of the order fall away as they hold no prospects of success.

Furthermore, I am of the view that grounds three and four suffer from the same ailment as the first two, in that they do not raise any point of law that would warrant deliberation by the Supreme Court. Regarding the third ground, it is the applicant’s averment that the Court overlooked specific evidence, particularly, that the applicant had appraised the DMO about the quantities of PPE that had been distributed. This issue is clearly factual, it focuses on the evidence presented to the Court and the manner in which the Court interpreted that evidence. It is not established in this ground which legal rule the Court misdirected itself on. The question whether or not the applicant appraised the DMO does not raise any point of law. The applicant is essentially arguing that the Court made a factual error, rather than a legal one. In The Trustees of the Leonard Cheshire Home Zimbabwe Central Trust v Robert Chiite & Others S 24/15, MALABA DCJ (as he then was) had this to say:

“Once a question requires a court to consider whether certain facts have been established in order to answer it, the court is to determine a question of fact.”

In Muzuva v United Botlers Pvt Ltd ZLR (1) 217 (S) the Court provided invaluable guidance as regards what constitutes a point of law. It had the following to say:

“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”

Indeed, there is no argument from the applicant challenging what the true rule of law is, as opposed to this Court’s findings on the issues that were before it.

Likewise, the fourth ground questions a factual finding that was established based on the evidence before the Court. It is structured in such a way that would invite the Supreme Court to re-examine the case and the evidence presented as argued by the respondent. This does not align with the stipulations of rule 92 F (2) of the Labour Act. In Bonde v National Foods Limited & 2 others SC 11-21, it was clearly stated that:

"The Applicant in making an appeal must not allege but also show that the Labour Court misdirected itself on a point of law. Mere regurgitation of facts, as has been done by the Applicant in his draft notice of appeal, will render the grounds of appeal defective".

As has been established earlier, the applicant has not pointed this Court to any misdirection on a point of law in the judgment sought to be challenged. It would appear that the Applicant is registering a general disgruntlement with the decision of the Court. MAKARAU JA (as she then was) had this to say in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matters where tye court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

The record shows that the Court reached a conclusion based on the evidence presented. The applicant does not claim that the Court utilized incorrect evidentiary rules or considered inadmissible evidence. Consequently, these grounds do not hold any prospects of success.

DISPOSITION

After examining the applicant’s prospective grounds of appeal, I am of the view that they do not raise legitimate questions of law as stipulated by section 92 F (2) of this Court’s rules. The test as to what constitutes points of law was established in the Muzuva case (supra) and by that standard, the grounds raised in casu do not hold prospects of success. In this light, I am inclined to come to the conclusion that the requirements for the granting of this application have not been met. As a gatekeeper, it is my responsibility to ensure that matters lacking legal merit are not escalated to the Supreme Court. Consequently, this application should be dismissed.

The following order is appropriate.

The application for leave to appeal to the Supreme Court, being devoid of merit, is hereby dismissed.

There is no order as to costs.

Civil Division of the Attorney General’s Office-	Respondent’s legal practitioners.