M Marufu & 14 Others v Canwits Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/455/2016
HARARE, 16 FEBRUARY 2016 &
22 JULY 2016
CASE NO LC/H/1114/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/455/2016

HARARE, 16 FEBRUARY 2016 &				     CASE NO LC/H/1114/2014

22 JULY 2016

In the matter between

M MARUFU & 14 OTHERS						APPELLANT

Versus

CANWITS INVESTMENTS						RESPONDENT

Before the Honourable Manyangadze J

For the Appellant	S Chirindu  (Trade Unionist)

For the Respondent	L Shambamuto (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award issued on 10 November 2014, which dismissed the appellants’ claim that their employment was unlawfully terminated.

The appellants were employed by the respondent in various capacities. After the annual shutdown of December 2013/January 2014, the appellants were advised not to report for duty until work was available. The respondent was facing viability problems, mainly caused by the demolition of houses taking place in Chitungwiza. This adversely affected its construction business.

The appellants were not recalled to work until 1 June 2014. When the respondent recalled them to work, the appellants did not report for duty. Instead, the appellants filed a complaint with a labour officer, alleging unlawful termination of employment, non-payment of overtime, non-payment of leave days and long service awards.

The matter went for conciliation and thereafter arbitration. The arbitrator dismissed the claims relating to unlawful termination and non- payment of overtime. He granted the claim for long service awards and partially granted the claim for payment of leave days, for the period 31 December 2013 to 1 June 2014.

Aggrieved by this determination, the appellants noted an appeal with this court. The grounds of appeal appear on pages 4 to 6 of the record, and are made up of 12 paragraphs. They are quite lengthy, and include case law and legislative provisions.

The respondent took issue with the grounds of appeal. It raised points in limine, to the effect that the grounds of appeal do not raise points of law, and that they are not precise and concise.

I will first deal with the aspect that relates to the precision and conciseness of the grounds of appeal. This aspect can, on its own, be dispositive of the question of whether or not the appeal is properly before the court.

The respondent averred that the grounds of appeal are in the nature of submissions, where even case law is cited. They do not read like grounds of appeal. They read like heads of argument. For instance, ground 1 reads:

“It is submitted that, the claimants were engaged by the respondent since 2006 on varying dates on contracts without limit of time. They went on annual leave in December 2013.However, when they came back in January 2014, the respondent told them verbally that, there was no work and would recall them when work was available.”

This is a factual background to the case. It cannot be regarded as a ground of appeal. The rest of the grounds built up on this background, and contain submissions supported by case law and legislative provisions.

A look at the grounds of appeal indeed shows broad, general submissions. The court has to glean from these submissions, precisely what it is the appellants are impugning in the arbitral award.

DUBE J, in Christopher Nyamukapa v The State HH 60-11 emphasized the need for clear and precise grounds of appeal. The learned judge’s remarks, which I fully associate with, are as follows:

“Grounds of appeal should be clearly stated and should not be in general form. As enunciated in R v Jack 1990 (2) ZLR 166, a notice without meaningful grounds of appeal is not a notice of appeal…….

The first ground avers that the trial magistrate relied on unsafe evidence to convict. If the ground is meant to challenge the magistrate’s findings of fact, it is not specifically so stated. In R v Emmerson 1958 (1) SA 442, BEADLE J said:

‘If the ground of appeal is that the magistrate erred in law this should be stated, and the particular mistake of law which the magistrate is alleged to have made should be set out. If however, the ground of appeal is that the magistrate erred on the facts this should be stated, and the applicant should go further and state whether the magistrate erred in accepting the evidence led or in regarding that evidence as sufficient to prove the offence.’”

In casu, the grounds of appeal were inelegantly and defectively drafted. This was done by the trade union official who represented the appellants. In Liston Baaslum & Others v Crazy Cutlery LC/H/362/16, this court was faced with a similar situation, where the grounds of appeal were improperly drafted by the appellants’ trade union representative.            The court emphasized the need for those who assume the responsibility of appearing on behalf of litigants to have the requisite knowledge and skills to undertake such a task.  They must therefore be able to articulate their clients’ cases.

Whilst this court exercises some flexibility, as a court of equity, in an endeavour to do justice between the parties concerned, there certainly is a limit beyond which such flexibility may not be extended. The grounds of appeal in this case are clearly defective. The court has to assume the extra burden of itself having to formulate the grounds of appeal, from the maze of submissions filed as grounds of appeal. Such grounds are fundamentally defective, and should not be allowed to stand as they are. In the circumstances, they must be struck off the roll.

IT IS ACCORDINGLY ORDERED THAT:

The point in limine raised by the respondent be and is hereby upheld.

The appeal be and is hereby struck off the roll.

The appellants shall bear the respondent’s costs.

Matsikidze & Mucheche, respondent’s legal practitioners