Junis Gumbo and 7 Others v Cargan Investments (Pvt) Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/141/2016
HARARE, 15 FEBRUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/141/2016

HARARE, 15 FEBRUARY 2016    		         	CASE NO. LC/H/435/15

AND 18 MARCH 2016

In the matter between:-

JUNIS GUMBO AND 7 OTHERS				Appellants

And

CARGAN INVESTMENTS (PVT) LTD				Respondent

Before Honourable P. Muzofa, Judge

For Appellants		J. Mudimu (Legal Practitioner)

For Respondent		O. Matizanadzo (Legal Practitioner)

MUZOFA, J:

Four preliminary points were raised for the respondents that the appellants were fugitives from justice they should not be heard, that the grounds of appeal raise procedural issues therefore an application for review should have been made, that the grounds of appeal donot raise questions of law and that the appellant waived their right to appeal.

I will address the preliminary points in turn.

For the respondent it was submitted that the appellants were facing criminal charges stemming from the same issue before the court.  They had absconded and the police were looking for them.  They should therefore not be heard.

Appellants denied this it was pointed out that the appellants were actually removed from remand in relation to the matter raised by respondent.  They were not on the police wanted list.  They were not on warrants of arrest therefore there was no basis for the respondent’s submission.

The respondent failed to substantiate its allegation that the appellants were fugitives from justice.  The respondent did not controvert the submission made for the appellant that they were removed from remand in respect of the criminal matter.

I find no substance in the preliminary point and therefore it is dismissed.

The second preliminary point and the third preliminary points raise issue that the grounds of appeal are improperly before the court.  Firstly in that they raise procedural issues therefore should come before the court by way of review and that they donot raise questions of law.  I will address the two preliminary points simultaneously.

The four grounds of appeal raise issue with the arbitrator’s findings in respect of the disciplinary hearing.  It was alleged that the arbitrator erred in finding that a disciplinary hearing was conducted, that the arbitrator erred by relying on a disciplinary hearing for the fifth appellant and that the minutes showed that the appellants were not in attendance therefore their right to be heard was violated.

Where the reason to have a judgment set aside is that the court or tribunal came to a wrong conclusion on the facts or the law, the remedy is sought by way of appeal.

However where the real grievance is against the method of the trial recourse is found by way of review.  Herbstein and Van Winscen, The Civil Practice of the Superior Courts in South Africa Second Edition page 668.

In casu the complaint is not that there were procedural irregularities, the complaint is that that arbitrator erred in finding that there were no procedural irregularities in the conduct of the disciplinary proceedings.  However the grounds of appeal go beyond the arbitrator, to the disciplinary proceedings.  The question would be were disciplinary proceedings held and were the appellants heard.  Clearly these are the substantive issues of the appeal and they raise procedural issues.  The court must not dwell so much on the form but the substance of the grounds of appeal. They raise procedural issues and therefore the proper recourse should have been by way of review. The preliminary point is upheld.

The second issue is that the grounds of appeal donot raise questions of law.  A question of law has been defined to include a gross misdirection on the facts see Sable Chemical Industries v Easterbrook 2010 (1) ZLR 342 (S).

The crux of the appeal is that no disciplinary proceedings were conducted.  The notices and the minutes produced before the arbitrator were all doctored.

The arbitrator after considering the submissions before him made a factual finding that the disciplinary proceedings were conducted.  He did not believe the appellants’ account of what transpired.

Where a party challenges factual findings it must be shown that the decision was grossly unreasonable in view of the proved facts.  The appellants only alleged that the minutes of the disciplinary proceedings were forged, no evidence to prove otherwise was produced.  The only evidence before the arbitrator were the minutes.

I am unable to fault the arbitrator, the findings were reasonable in the circumstances. The grounds of appeal donot raise questions of law.

This preliminary point also succeeds.

The last issue is on waiver.  It was submitted that the appellants have taken steps to enforce the award.  The court was referred to the case of Sibangilizwe Dhlodhlo v The Deputy Sheriff Marondera and Others HH 78/11 where the court said a litigant cannot blow hot and cold at the same time, a litigant cannot appeal against an award at the same time enforcing it.

I donot think the principle applies in this case.  The appellants have not appealed against the whole arbitral award.  They have only appealed against the part that relates to their dismissal.  They have not challenged the finding on their April 2014 salaries.

The preliminary point has no merit and is dismissed.

From the foregoing the second and third preliminary points succeed.  The grounds of appeal are improperly before the Court.  The determination deposes of the appeal.

The second and third preliminary points be and are hereby upheld.

The appeal is accordingly dismissed with costs.

Mudimu Law Chambers, appellants’ legal practitioners

Matizanadzo & Warhurst, respondent’s legal practitioners