Masotsha Ngwenya v Track It

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/541/2016
HARARE, 18 MAY 2016
CASE NO.
JUDGMENT NO. LC/H/541/16
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/541/2016

HARARE, 18 MAY 2016			           CASE NO. LC/H/APP/1457/15

AND 23 SEPTEMBER 2016

In the matter between:-

MASOTSHA NGWENYA					Applicant

And

TRACK IT							Respondent

Before Honourable L. Kudya, Judge

For Applicant		B Ngwenya (Legal Practitioner)

For Respondent		I T Chingarande (Legal Practitioner)

KUDYA, J:

This is an application for leave to appeal to the Supreme Court at instance of the applicant employee following this court’s decision to allow the appeal noted by the respondent employer in a labour case pitting it and the applicant.

Basic facts of the matter are that respondent approached the Labour Court on appeal after the applicant had been reinstated to his original position at work after his dismissal by respondent on misconduct allegations in contravention of the Respondent Code of Conduct.

The Labour Court confirmed applicant’s dismissal from work and set aside the N.E.C appeals body’s decision to reinstate the applicant.  The applicant was irked by that decision and now intends to appeal to the Supreme Court.

1.	The basis of the application for leave is a founding affidavit by the applicant where he states that the Labour Court erred grossly by holding that he absconded the hearing yet it was apparent that he had been given short notice to attend following his incarceration on the same facts.

2.	Labour Court erred at law to find that the default decision was not appealable yet failure to adhere to the audi alteram partem rule would found basis for such an appeal.

3.	Labour court findings upset the tenets of law and create manifest injustice to be addressed by a higher appellate body.

In the ultimate applicant argues that his prospects are therefore high and he should

Thus be granted the leave which he is seeking.

In response to the leave application the respondent maintained that:

Labour court was right to find that even though applicant had the right to be heard he waived same when he deliberately refrained from appearing before the disciplinary committee to at least even seek a postponement if he was of the view that he had been given short notice to attend the hearing.

Court correctly found that a default judgment was not appealable.  Since merits of the matter were not dealt with no appeal could lie from same but review instead.

Where party waives own rights deliberately he cannot use the superior forum to raise issue of the right to be heard.

Right to seek redress from Superior Courts is not absolute but only for deserving cases and in instant case Supreme Court is not likely to interfere with Labour Court decision hence no need to grant leave to appeal.

Appeal grounds to Supreme Court are not merited and all do not raise points of law to be deliberated by the Supreme Court.  In the result the respondent prayed that the application for leave be dismissed with costs for lack of merit.

The test for leave to appeal applications is settled. See Chikurunhe v ZBH SC-10-08  Masukusa v Kingdom Holdings SC-18-12.  The applicant has to satisfy the court that he has good prospects on points of law which he intends to take up with the Supreme Court.

Applying the law to the facts of the case at hand it is apparent that what applicant takes issue with mainly is the fact that the Labour Court was wrong to rule that he had waived his right when he deliberately defaulted attending the disciplinary hearing.  It is patently clear that such submission does not raise any point of law which the appellate court may be called upon to decide.

Besides, the court’s decision detailed why it was satisfied that applicant could not argue that he had been denied the right to be heard.  There is no purpose served by repeating the same arguments which are apparent in the judgment.  The court also fails to appreciate how applicant argues that the default judgment can be appealed.  The law is clear that such relief is not available in default circumstances so there is no purpose to referring the matter to the Supreme Court to decide on an already settled legal position.  In the ultimate the court is not persuaded that applicant has made a good case for leave to appeal.  The application should consequently fail.

IT IS ORDERED THAT

Application for leave to appeal to the Supreme Court being without merit it be and is hereby dismissed with costs.

Chinawa Law Chambers, applicant’s legal practitioners

Matizanadzo & Warhurst, respondent’s legal practitioners