Green Fuel (Pvt) Ltd v Nicholas Mahwenyiwo & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/665/16
HELD AT HARARE 21 JUNE 2016
CASE NO
JUDGMENT NO LC/H/665/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/665/16

HELD AT HARARE 21 JUNE 2016				CASE NO LC/H/62/16

& 21 OCTOBER 2016

In the matter between:

GREEN FUEL (PVT) LTD					Appellant

And

NICHOLAS MAHWENYIWO & 2 OTHERS			Respondents

Before The Honourable Makamure, J

For Appellant		I Ahmed (Legal Practitioner)

For Respondent		K Masasire (Legal Practitioner)

MAKAMURE J:

This is an appeal against an award granted by an arbitrator sitting at Rusape on 17 January 2016.

Before the appeal was heard Mr Ahmed who appeared on behalf of the appellant made an application for leave to file supplementary affidavits for certain evidence to be placed before the court.  Mr Masasire who appeared for the respondents opposed the application averring that the appeal is confined to the four corners of the record and no more.  Mr Masasire submitted that the application was ill conceived.

Indeed an appeal is based on the four corners of the record.  The appeal has not been heard and the court is not in a position to consider whether or not any evidence should be placed before it since the hearing of the merits has not commenced.  It is only during the course of the hearing that, where necessary, other evidence may be called.  Such evidence still must also have been considered by the earlier tribunal whose decision is on appeal.  This is for the reason that an appeal court cannot consider new issues which the lower tribunal did not have a chance to consider.  (See Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H)

In the result I am of the view that the application is premature and can therefore not be granted.

Accordingly it is ordered that the application for leave to file supplementary affidavits be and is hereby dismissed.

Ahmed & Ziyambi, applicant’s legal practitioners

Musoni Masasire, Law Chambers, respondents’ legal practitioners