Jacob Mafuka v First Pack (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/771/14
HELD AT HARARE 28TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/771/14

HELD AT HARARE 28TH OCTOBER 2014		CASE NO LC/REV/H/138/14

& 21ST NOVEMBER 2014

In the matter between:-

JACOB MAFUKA					Applicant

And

FIRST PACK (PVT) LTD				Respondent

Before The Honourable E Muchawa, Judge

For Applicant		James Mutasa (Trade Unionist)

For Respondent		M Mandevere (Legal Practitioner)

MUCHAWA, J:

Before me is an application for review of the decision of the Negotiating Committee of the National Employment Council for the Commercial Sectors.

Applicant is a former employee of the respondent.  He was dismissed from employment on allegations of falsifying or changing company documents with fraudulent intent.  Such a decision was upheld on appeal to the Chief Executive Officer, then the Mashonaland Local Joint Committee and finally the Negotiating Committee.

The facts giving rise to the charge were that the applicant had indicated in the time log book that he had arrived for work at 08.00 a.m. when he had in fact arrived at 08.10 hours as witnessed by several other co-workers and contained in a report written by him.  It was alleged that the applicant falsified the respondent’s time book with fraudulent intent.

Two points in limine were raised at the hearing.  I deal with each below as I reserved my ruling after hearing submissions.

Non – Timeous Filing of Notice of Response

Applicant raised the point in limine that respondent had filed its notice of response late, some 90 days after the set time.  I was urged to throw the response out and proceed as if the matter is unopposed.

The record shows that applicant filed its application for review on the

5 May 2014.   This application was served on the respondent on the 8 May 2014.  Respondent’s response was filed on the 5 August 2014.

Applicant’s contention is that the response should have been filed within 21 days of the receipt of the application for review by the respondent.

It seems to me that applicant has misread Rule 16 (2) of the Labour Court Rules.  This rule states that the giving of a notice to respond, by the Registrar, is what triggers the notice of response.  A respondent should file such a notice of response within fourteen days of the date when the Registrar gives notice to the respondent.

In casu respondent was served with the notice to respond after the 21 July 2014 (the date of issuing out).

I find therefore that the notice of response filed on the 5 August 2014 was filed timeously.  There is therefore no merit in this point in limine which I accordingly dismiss.

No grounds of Review Before Me

Respondent avers that there are no grounds of review before me and that applicant has used a wrong procedure.  The application is said to be fatally defective on that account.

I was referred to Herbstein and van Winsen, Civil Practice of the Supreme Court of South Africa, 4th ed, p 932 on the distinction between an appeal and a review.  It states,

“The reason for bringing proceedings under review or appeal is usually the same, to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.  The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is being attacked.  Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The giving of a judgment not justified by the evidence would be a matter of appeal and not review, upon this test.  The essential question in review proceedings is not the correctness of the decision

under review but its validity.”

I have closely looked at the numerous pleadings filed by applicant.  these

are the Notice of the Application for Review, a document titled “Background to the matter”, another titled “Submissions of The Merits, “Applicant’s Response to respondent’s Supplementary Heads,” “Applicant’s Response to respondent’s Submissions and finally the “Answering Heads of Argument.”  In all these documents I have not come across any grounds that I could classify as calling on me to determine whether there were any reviewable procedural irregularities or any action by the Negotiating Committee which seems to be ultra vires the powers allocated to the tribunal.  Rather applicant is delving into the substantive correctness of the decisions.

It is only on the question of a Mr Phiri who is said not to have been properly sitting as part of the initial hearing committee that there is a semblance of a review ground.  However this too is not properly before me as it was not brought up before the Chief Executive Officer, the Local Joint Committee and the Negotiating Committee on appeal.  It appears before me for the first time.  (See Austerlands Pvt Ltd v Trade and Investments Bank & Ors  SC 92 – 05).

I was not pointed to any prejudice consequently suffered.

Applicant sought to argue too that as applicant was not heard orally by the Negotiating Committee, and that it is a ground for review.  This only emerged in oral submissions before me.

Section 7 (3) (2) of the National Employment Council for the Commercial Sectors  Employment Code of Conduct and Grievance Procedures actually provides that an appeal before the Negotiating Committee shall be decided on the papers.  It does not provide for an oral hearing.

In the light of the above I find that there is no proper application for review before me, for want of proper grounds of review.  Applicant used a wrong procedure.

Accordingly the application for review be and is hereby dismissed with costs.

Kadzere, Hungwe & Mandevere,  respondent’s legal practitioners