Knowledge Dave v National Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/90/23
HARARE, 18 JANUARY 2023
CASE NO. LC/H/716/22
AND 28th MARCH 2023
X REF LC/H/555/21
In the matter between:-
KNOWLEDGE DAVE
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO.LC/H/90/23

HARARE, 18 JANUARY 2023

CASE NO. LC/H/716/22

AND 28th MARCH 2023

X REF LC/H/555/21

In the matter between:-

KNOWLEDGE DAVE

APPLICANT

And

NATIONAL FOODS LIMITED

RESPONDENT

Before Honourable B.T. Chivizhe, J:

Applicant in person
For Respondent – Mr. D. Peneti, Legal Practitioner

CHIVIZHE, J:

This is an application for leave to appeal to the Supreme Court against the judgement handed down by this Court reference LC/H/199/22 dated 11th July 2022. The application is made pursuant to the provisions in Section 92 F (2) of the Labour Act [Cap 28:01] as read with Rule 43 of the Labour Court Rules, Statutory Instrument 150 of 2017. The application is opposed.

REQUIREMENTS IN AN APPLICATION FOR LEAVE TO APPEAL

There are basically two requirements to be met in an application for leave to appeal. The first requirement is that the application must demonstrate that the intended appeal is on a question of law. See Reserve Bank of Zimbabwe vs. Grainger & Anor SC 34/01. The second requirement is that the Applicant must demonstrate that he/she has prospects of success in the intended appeal.
 The Applicant in this case has submitted as his basis for seeking leave the grounds as outlined from paragraph 20 to paragraph 31 of his Founding Affidavit. The Respondent through its Notice of Response and Heads of Argument is opposed to the application. The Respondent main grounds of opposition are as follows; firstly, that the Applicant has failed to point to any error of law committed by this Court; secondly, the Applicant, has in any event not attached a draft notice of appeal and so the application is improperly before the Court; thirdly, assuming there are any issues of law the issues have no prospects of success before the Supreme Court. The Respondent submits that this Court must consequently dismiss the application as it is clearly without merit.

**PARTIES SUBMISSIONS**

The parties appeared before the Court and presented oral arguments. The Applicant submitted that he would abide with his written submissions. *Mr Peneti*, for the Respondent in reply, emphasised on the Applicant poor prospects of success in the Supreme Court. He submitted that as the matter had been largely decided on the issue of prescription, this Court having found that the application for condonation was filed outside period of 3 (three) years and thus was improperly before it, the Applicant had very poor prospects of success in view of the position that has been taken by the Supreme Court on the very same subject. There was therefore no basis for the Applicant seeking to approach that Court again on the same subject. The application clearly had no merit. In his reply, Mr Dave submitted that he had good prospects of success in view of the errors of law as committed by this Court. When pressed by the Court to clarify Mr Dave submitted that the Supreme Court decisions on prescription that this Court had relied in the judgement were decided on the basis of different factual circumstances prevailing. In other words the cases had been determined on the basis of their peculiar factual circumstances. It was his submission that based on the factual circumstances prevailing in this matter which facts had been placed before this Court, the Court ought to have found that the matter had not prescribed.

**EVALUATION**

**Rule 43 of the Labour Court Rules, Statutory Instrument 150 of 2017** provides as follows;

> “Leave to appeal against decisions of the Court

43. (1) An application in terms of section 92F (2) of the Act seeking leave to appeal from any decision of the Court shall be made to the Judge of the Court who made the decision or in his or her absence, from any other Judge, within twenty-one days from the date of that decision.

(2) An application in terms of this rule shall be accompanied by a draft of the intended Notice of Appeal to the Supreme Court.

It is clear that sub rule (2) is mandatory through the use of “shall” (case authority). Although the point of the missing draft notice of appeal was raised by the Respondent through its papers filed the Applicant failed to address himself to the issue, either through written or oral arguments. It is however trite that a failure to attach a draft notice of appeal renders the application fatally defective (Tobacco Processors Zimbabwe (Pvt) Ltd vs Tongoona Muresa & Ors SC 12/21). The Court ought to therefore strike off the roll the application.

Assuming however the application is properly before this Court, it is also apparent that Applicant has failed to demonstrate that the intended appeal is on a question of law. It is appreciated that Applicant is a self-actor and is therefore not familiar with legal issues involved. During the hearing the Court tried to assist the Applicant to remain focused on critical legal issues that was before the Court i.e. whether the court was misdirected in itself finding that the application for condonation had prescribed by the time it was placed before the Labour Court. The Applicant however failed to pin point to an error of law committed by this Court in arriving at the conclusion that the matter had prescribed. In oral submissions the Applicant reiterated that the Court had misdirected itself on the facts of the matter.

The issue as to what is a question of law was decided in Muzuva vs. United Bottlers (Private) Limited 1994 (1) ZLR 217 (S) which is referred to in Respondent Heads of Argument. A question of law was decided to mean;

“Firstly it means ‘a question which the law itself has authoritatively answered to exclusion of the right of court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter’. Secondly it means ‘a question as to what the law is. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter’. Thirdly ‘any question which is within the province of the judge instead of jury’ is called a “question of law”.

The definition of a question of law has however been expanded upon over the years.

A serious misdirection on the facts amounts to a misdirection in law. See National Foods vs. Mugadza SC 105/95. In Hama vs. National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 A – D KORSAH JA explained the basis of principle as follows;
 “a serious misdirection on the facts amounts to a misdirection of law if it is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

Irrationality was also found to exist by the Supreme Court in Barros & Anor vs. Chimpondah 1991 (1) ZLR 58 (S) at 62 G-H;

“If the primary Court acts upon a wrong principle; if it allows extraneous or irrelevant matter to guide or affect it; if it mistakes the facts, (or) if it does not take into account some relevant considerations.”

The Applicant was clearly correct therefore when he submitted that a factual attack on a judgement can also result in a question of law arising. The only problem however is that he has failed to articulate clearly which factual findings made by the Court resulted in a misdirection. A perusal of his intended grounds of appeal from paragraph 21 to 37 of the Founding Affidavit shows that Applicant presents long and winding arguments which are as submitted by Respondent difficult to comprehend. It is appreciated that Applicant is a self-actor. He still ought to have sought legal advice even from Legal Directorate in drawing up his application considering its importance in that he wants to approach the Supreme Court. The bottom line is that the Applicant has failed to demonstrate that his intended appeal is on a question/s of law. Even if his intention is to attack this Court’s judgement on the basis of factual misdirection he has not contended that in his application.

The only contention made by Applicant is that this Court ought to have assessed his financial incapacity at the material time and found that as an issue that interrupted prescription. The issue as raised is clearly not one of law. The Applicant has also launched an attack on the judicial system and the Respondent as being corrupt. The very serious allegations are however made in the absence of any proof. The court will not dwell on the issue for that reason. The Applicant ought to have instead focused more on the ratio decidendi of the decision. An appeal must after all be focused on the ratio decidendi of the decision See Muza vs. Saruchera & 3 Others SC 45/2018 to which the Court was aptly referred by Respondent.

Lastly, it is also apparent to the Court that even assuming that the arguments as placed before the Court amount to ‘question of law’ the arguments are in any event devoid of merit and therefore do not carry prospects of success in the Supreme Court. The Applicant has suggested that this Court erred by finding that the application for condonation fell within the ambit of the Prescription Act [Chapter 8:11]. The Applicant position is that the Court ought to have found that the matter being primarily based on an Unfair Labour Practice ought to have been decided on the basis of the **Labour Act [Chapter 28:01]**. In view of the position as already taken by the Supreme Court in several judgements which were referred this Court judgement referred to above as well as **Manjova vs. Delta SC 64/21** it is clear that Applicant indeed has poor prospects of success.

Granting him leave to appeal on the same point which the Supreme Court has already traversed will be an exercise in futility. Prescription knows no cure. Prescription starts to run as soon as the debt is due. The statute is clear in **Section 15 of Prescription Act [Chapter 8:11]**. Once there is effluxion of the period a claim cannot be revived. It is lost forever.

In the result the application for leave to appeal against this Court’s decision is dismissed with no order as to costs.

*Maguchu & Muchada Business Attorneys*, counsel for the respondent
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