Kadoma Textiles Private Limited v Davies Mazambara & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/809/16
HELD AT HARARE ON 30TH SEPTEMBER, 2016
CASE NO. LC/H/APP/656/16
AND 16 DECEMBER, 2016
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/809/16

HELD AT HARARE ON 30TH SEPTEMBER, 2016  CASE NO. LC/H/APP/656/16

AND 16 DECEMBER, 2016

In the matter between:-

KADOMA TEXTILES PRIVATE LIMITED				Appellant

AND

DAVIES MAZAMBARA & 8 OTHERS					Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Advocate T. Zhuwarara

For Respondents	:	Mr Gama (Legal Practitioner)

MHURI J.

On the 13th May 2016 the Court delivered a judgment in which the appeal by Applicant was dismissed and the arbitral award confirmed.

Having been aggrieved, Applicant filed this application for leave to appeal to the Supreme Court.

In determining applications for leave to appeal to the Supreme Court, such as this one, the Applicant must not only show that his appeal is on a point of law but also persuade the Court that he has prospects of success on appeal. It is not enough to merely state that he has an arguable case on appeal.

See State v McGown 1995 (2) ZLR 81(S).

The Court held, “……It is not enough to make out an “arguable” case, for there are very few cases which are not arguable in the wide sense of the word….”

See also, R v BOYA 1952 (3) SA 574 CPD.

Before the Court, was an appeal against the arbitral award, which was not against the quantification but the arbitrator’s interpretation of the phrase “effective date.”  Initially, as can be gleaned from this Court’s judgment, Applicant had premised his appeal on four (4) grounds, two of which he expressly abandoned at the hearing.

It is these two grounds namely:-

“1. In deciding on the meaning of “effective date,” the arbitrator erred at law

in failing to consider the meaning of the phrase but rather proceed to

determine what he meant or intended to mean.

The arbitrator erred at law in failing to find that “effective date” means the date when the increments awarded by him start to apply. Consequently, the arbitrator’s finding to the contrary, is incongruable and wrong at law”.

that the Court focused on and determined.

Ground 2.1 which was on the retrospectivity of the salary increases was abandoned.

Ground 3 which was on the meaning and effect of “baseline current salary” was abandoned.

Ground 4 which was on the Respondent’s entitlements was abandoned.

These grounds were abandoned, hence there was no basis at all for the Court to revisit them, let alone invoke section 89(2)(a)(ii) of the Labour Act Chapter 28:01 and set aside the award.

It is a well established principle that a Court cannot be challenged for not determining an issue that was not placed before it.

See

UNITED TOURING COMPANY

V

CHIKANDA SC 7/99

C KAMBUZUMA AND TWENTY TWO OTHERS

V

THE ATHOL EVANS HOSPITAL HOME COMPLEX SC 118/2004

In casu, Applicant’s attacks on the Court are based on the issues of retrospectivity, baseline salary, that the arbitrator supplemented his award and the functus officio principle, which issues were not argued before it. It is these issues that Applicant intends to place before the Supreme Court, more particularly to place before the Supreme Court that the Court, in the exercise of its wide powers, did not mero motu decide on these issues.

In my considered view, this appeal is doomed to fail. There are no prospects of success at all. I find support in the remarks of De Villiers JP in the case of R v Boya (supra) to the effect that “Reasonable prospects of success on appeal means that the Judge who has to deal with an application for leave to appeal must be satisfied that on the findings of fact or conclusions of law involved, the Court of appeal may well take a different view from that arrived at by the jury or by himself and arrive at a different conclusion.”

Faced with the same situation, I do not believe that the Supreme Court would delve into abandoned grounds and in the exercise of its inherent jurisdiction set aside the award.

To that end, leave to appeal to the Supreme Court is denied.

It is therefore ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Dube, Manikai & Hwacha	 - Appellant’s Legal Practitioners

Gama & Partners			- Respondent’s Legal Practitioners