Keith Robin Mungoshi v Sikirwai Gandi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/471/2016
HARARE, 5 JULY 2016 &
5 AUGUST 2016
CASE NO LC/H/147/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/471/2016

HARARE, 5 JULY 2016 &					        CASE NO LC/H/147/2016

5 AUGUST 2016

In the matter between

KEITH ROBIN MUNGOSHI						APPELLANT

Versus

SIKIRWAI GANDI								RESPONDENT

Before the Honourable Muchawa J

For the Appellant	G Pendei  (Legal Practitioner)

For the Respondent	T Dzikiti (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award in respect to one Sikirwai Gandi and Milestone Academy (MA). The arbitrator’s terms of reference were to determine whether or not the termination of the respondent’s contract of employment was lawful, the amount of salary arrears and the appropriate remedy.

The arbitrator found that the termination was unlawful and that Milestone Academy owed the respondent arrear salaries in the amount of $6 976-40. He ordered that the respondent be reinstated or alternatively that he be paid damages in lieu of reinstatement.

Before this court, a party known as Keith Robin Mungoshi filed an appeal against the arbitral award purportedly as “Milestone Academy”. The appeal is noted as between Keith Robin Mungoshi and Sikirwai Gandi.

The appeal grounds are in the form of what is termed “arbitration rebuts spanning a full seven pages and includes the following attachments:

A sample Milestone Academy contract of employment  (6 pages)

Salary schedule S Gandi  (1 page)

5 pages of proof that Gandi received education benefit.

Gandi a fraudulent character on duty for 122 hours  (1 page)

Terminal contract signed by Gandi (1 page)

Gandi’s fraudulent holiday job card (1 page)

The Police Act Provisions  (1 page)

Witness list (2 pages)

Occurrence book  (18 pages)

The following emerge as possible grounds of appeal:

Case closed prematurely.

Failure to determine agreement between Gandi and MA.

All requests for documents made on behalf of Gandi were met by MA.

Unfair dismissal and reinstatement.

Unjust enrichment.

Judgment failed to accommodate witnesses.

Judgment fails to deliver papers to MA lawyers.

Judgment issued with (allegedly) wrong and malicious calculations.

Failure by judgment to explain the arbitration process.

Lack of proper handover/takeover – conciliation and arbitration.

All MA concerns ignored by judgment.

Multiple proceedings and duress.

Monetary extortion omitted in judgment.

Inclusion of holiday salaries in judgment.

Gandi: a shared resource.

Fabrications on job cards.

Gandi: a uniformed member of ZRP

Judgment in contravention of the Police Act of Zimbabwe.

Following the filing of the appeal on 15 March 2016, the respondent filed a response and raised points in limine that there are no proper grounds of appeal before me as most deal with procedure and that they do not raise questions of law as stipulated by the Labour Act. Further that the grounds of appeal are not succinctly stated so as to enable a proper response by the respondent.

The appellant, who was then legally represented at the hearing also raised points in limine. The first is that the notice of opposition is not in the proper form as prescribed in Rule 15 (2) of the Labour Court Rules which provides that a notice of response should be lodged on Part II of Form LC2. I dismissed this point in limine as I exercised my discretion to condone the non-compliance. I found that there had been substantial compliance with the Rules.

I however upheld the second point in limine wherein the appellant invoked Rule 19 (3) of the Labour Court Rules. The respondent was barred and I proceeded to determine the matter on the merits. I however made a preliminary observation.

The court observed that the current appellant was not a party to the proceedings before the arbitrator. The respondent’s position was that the appellant had no locus standi.

The appellant’s lawyer who seemed not to have noted this and assumed agency and filed hears of argument for Milestone Academy explained that the true parties before the court are Milestone Academy and Sikirwai Gandi as evident from the arbitral award appealed against. It was further explained that this was as a result of the appellant being a self-actor. I was asked to amend the citation of the parties to Milestone Academy v Sikirwai Gandi. I reserved my ruling on this. This is it.

Milestone Academy is an organisation run by a board of governors and it is a legal persona.

The appellant is the principal of Milestone Academy. The two are distinct legal personas. The applicant was not a party to the arbitral proceedings. He has no capacity therefore, to lodge an appeal in this manner before me.

Regarding the drafting of the grounds of appeal, Mr Pendei for the appellant, at the hearing admitted that the grounds of appeal are poorly drafted. He then directed the court to only consider whether or not the termination was unfair, the appropriate remedy and whether the arbitrator erred in awarding arrear salaries.

I believe that the appellant’s attempts to rectify the state of the grounds of appeal was late. Omnibus grounds of appeal are not permitted at law. Jensen v Acavalos 1993 (1) ZLR 216 (S). Such grounds are required to be a precise statement of the points on which the appellant relies so that the respondent may know on which points he must prepare a reply, and so that the court may know on which points a decision is required. S v McNab 1986 (2) ZLR 280 (SC).

Further in Songono v Minister of Law & Order 1996 (4) SA 384 E at 385 it was held that it is not good enough to say the grounds of appeal can be gleaned from the notice. The notice must clearly set out the grounds and it is not for the court to have to analyse a lengthy document (in casu 36 pages) in an attempt to establish what grounds the appellant intended to rely upon but did not clearly set out. Such a notice of appeal was found to be fatally defective.

I equally find the appellant’s grounds of appeal to be fatally defective and the attempts to cull them at the hearing, defeats the purpose of giving notice to the court and the respondent.

Accordingly this appeal is struck off the roll.

Manyangadze Law Practice, appellant’s legal practice

Jena & Associates, respondent’s legal practitioners