Kudakwashe Martin Manjengwa v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/74/25
HARARE, 12 SEPTEMBER 2024 AND
26 FEBRUARY 2025
CASE NO LC/H/548/24
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 12 SEPTEMBER 2024 AND 26 FEBRUARY 2025

KUDAKWASHE MARTIN MANJENGWA

ZIMBABWE REVENUE AUTHORITY

JUDGMENT NO LC/H/74/25

CASE NO LC/H/548/24

APPLICANT

RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant

For Respondent

-	Mr B. Magogo, Advocate

-	Mr S. Bhebhe, Attorney

MUSARIRI, J:

Applicant applied to this Court for leave to appeal its judgement to the Supreme Court. Theapplication was made in terms of Section 92F of the Labour Act Chapter 28:01, hereafter called the Act, as read with Rule 43 of the Labour Court Rules, 2017, Respondent opposed the application.

At the onset of oral argument in this Court Respondent abandoned its points in limine to the effect that

1. The application was filed out of time; and

2. The draft appeal was irregular for failure to incorporate alternative email address and telephone number.

The parties then agreed that the matter be heard holistically with Applicant presenting first. The draft grounds of appeal are triplet thus,

“1.The court a quo gross misdirected itself in finding that the most readily apparent and acceptable inference from the facts was that the trucks did not arrive at the boarder against clear evidence that Appellant physically removed seals on trucks and that these trucks had been independently entered in the entry and exit security records at the border.

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2. The court grossly erred at law and seriously misdirected itself on facts in upholding Appellant’s conviction even against the concession by the Complainant that Appellant had not violated any internal procedure.

3. The court grossly misdirected itself in basing its decision on the absence of CTIPs even against the concession by Respondent that custody of these was not part of Appellant’s responsibilities.”

Respondent countered through its opposing affidavit as follows.

“6.7 A careful analysis of Applicant’s intended grounds of appeal clearly show the three proposed grounds of appeal call upon the Supreme Court to ventilate on whether or not the trucks physically arrived at Forbes border post. Applicant’s grounds of Appeal 2 & 3 are actually flowing from the first ground of appeal and as such, the two cannot be considered in isolation of the first ground of appeal.

6.8 It is quite apparent that the Honourable Court upheld the conviction of the Applicant on the basis that the vehicles never arrived at Forbes border post. The charge letter was quite explicit that Appellant removed the electronic seals on the trucks which never physically arrived at Forbes border post.

6.9 The issue of the physical arrival of the trucks is not an issue that the Supreme Court should decide on as this was well articulated by this Honourable Court in its judgment after going through the entire record of proceedings from the Disciplinary and Grievance Committee and Appeals Committee. There was no irregularity or unreasonableness in the Court’s finding to the effect that the trucks never made it to Forbes Border Post in light of the evidence that was adduced.”

The requirements for the grant of leave to appeal this Court’s judgements are two-fold. Firstly

the grounds of appeal must raise questions of law as prescribed by provisions of Section 92F(1) of the Act. Secondly the grounds of appeal must have reasonable prospect of success. See:

Attorney General  -v- Phiri HB 100/11

Per Ndou J,

“The issue is whether the applicant has any prospect of success on appeal. The appeal court should be protected from the burden of having to deal with appeals in which there isno prospect of success – S V Rens 19956 91) SA 1218 (CC) at 1226; JR Rowland Criminal Procedure in Zimbabwe, 1996 at 27-12 and SV Mutasa 1988(2) ZLR 4(SC). 1st 8D. In other words, before the application could be granted it is necessary for the applicant to show a reasonable prospect of success on appeal. If the applicant has prospects, leave to appeal should be granted, if not, it should be refused. It is not enough to make out a reasonably arguable case.

The draft grounds of appeal in casu set out a reasonably arguable case. But as indicated in the

Attorney General case supra, that is not enough. What is required is a reasonable prospect of

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success. There is none such prospect in this case. As conceded by applicant, this Court correctly relied on the case of Ebrahim v Pittman 1995(1) ZLR 176 in assessing the circumstantial evidence. The more likely probability prevails over a reasonable possibility. It is reasonable arguable, per the grounds of appeal that the entry of the truck in the exit records and concession that internal procedure was not violated point to applicant’s innocence. However the absence of the critical clearance documents, travel history of the truck together with the disarming of electronic seals by applicant point the likely probability of applicant’s guilt. In these circumstances the grounds of appeal lack reasonable prospect of success.

Accordingly the application ought to be dismissed as devoid of merit.

Wherefore it is ordered that:

1. The application for leave to appeal be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E