Nyenga Oncemore Machuwair v Civil Service Commission & Anor (Minister of Home Affairs N.O)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/300/2016
HARARE, 28 JANUARY 2016 &
13 MAY 2016
CASE NO LC/H/803/2015
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/300/2016

HARARE, 28 JANUARY 2016 &			                    CASE NO LC/H/803/2015

13 MAY 2016

In the matter between:

NYENGA ONCEMORE MACHUWAIRE			       APPELLANT

Versus

CIVIL SERVICE COMMISSION					       1ST RESPONDENT

And

MINISTER OF HOME AFFAIRS N.O				       2ND RESPONDENT

Before the Honourable D L Hove J

For the Appellant	H B I Tanaya (Legal Practitioner)

For the Respondent    C Chopamba (Legal Practitioner)

HOVE J:

At the hearing of this appeal, the respondent raised preliminary issues which were:

The appeal was only premised on grounds of facts and thus must be dismissed as no grounds of law have been brought before the court for determination.

The grounds of appeal raise procedural issues and these are not properly raised in an appeal. They should be held to be improperly before the court.

The appeal is out of time and is for that reason also improperly before the court and must be dismissed.

The appellant argued and submitted in response vis a vis the first preliminary point that there is no requirement that appeals to the Labour Court from cases determined in terms of the Public Service regulating, 2000 be only on points of law.

I was not referred to any authority by the respondent for the basis of his first preliminary point and I have been unable to find any authority to that effect. The result is that the respondent has failed to establish the basis of their first objection and it must therefore fail.

The second ground

That the grounds of appeal only raise procedural issues that should be raised by way of review and not appeal.

It is trite that in challenging procedural issues, one must do so by way of review. There is a difference between a review and an appeal. When one is challenging the substantive correctness of a decision i.e. challenging the decision itself, they do so by way of an appeal. But when the challenge is against procedural issues or when the appellant seeks to raise reviewable matters such as bias, this can only be raised by way of a review.

See in this case the cases of Muringi v Air Zimbabwe 1997 (2) ZLR 488 where the court stated that:

“Judicial Review as the phrase implies, is not concerned with the correctness of the decision but with the decision making process.”

See also Blue Ribbon Foods Ltd v Dube N O SC 133-93 where it was stated that:

“In review proceedings, where allegations of procedural impropriety or bias are commonly made (those being the common grounds which justify review).”

It follows therefore that procedural issues can be raised by way of a review. The first ground of appeal is that the commission took an unreasonably long time to dispose of the review. This ground is not seeking to challenge the substantive correctness of the decision but the manner of arriving at the decision. Clearly, it is a ground for review and the court ought to have been approached by way of a review application and not an appeal.

The second ground of appeal is also challenging the manner in which the commission had arrived at the decision after an unlawfully long time. This is also a reviewable ground and not a ground of appeal.

The Public Service Regulations in providing that an appeal shall lie to the labour Court was not in any way trying to make nonsense of the distinction between an appeal and a review. They were merely indicating the next level of appeal. It is up to the appellant or his or her legal representative to now make the distinction between issues for review and those for appeal and act in terms of law.

Ground of appeal number four is also seeking to challenge a finding that is procedural i.e. whether or not the proceedings had been done properly, whether the facts of the matter had been put to the appellant. This is an issue of procedure and cannot be raised in an appeal.

Grounds of appeal number three, five, six and seven are however challenging the decision itself and can properly be raised in an appeal.

Grounds number one, two and four are improperly before the court and must be struck off.

The appeal is out of time

The last preliminary issue raised is that the appeal is out of time.

It has been submitted by the respondent that the appeal is out of time. It ought to have been filed within twenty-one days in terms of the Public Service Regulations. Receipt of the determination was acknowledged on 4 August 2015. The notice of appeal was filed on 1 September 2015. This was a period in excess of twenty-one days as the Public Service Regulations do not provide that in calculating the days, Public Holidays and weekends shall be excluded.

Reliance for this preposition was placed on the case of Makuvaza v National Railways of Zimbabwe.

The appellant who initially had indicated that he had been taken by surprise by the raising of this issue at the 11th hour did not however seek that the matter be postponed to enable him to prepare his response. He chose to proceed and argued that the interpretation act violates provisions of the constitution if it did not provide that in the calculation of days, within which one must file an appeal. Provisions for the exclusion of holidays and weekend days must be made and if no such provisions were made, then it was unconstitutional.

The court was not referred to any specific provisions of the Constitution which were allegedly breached by the Public Service Regulations and the Interpretation Act. The statement was just a bold statement unsupported by any further submissions.

The court is not clear as to what exactly is alleged to have been violated in the constitution.

It was the appellant’s duty to properly outline its case before the court to enable the court to consider the issues. As it is there are no proper issues raised in defence and the court must find as has been submitted by the respondent that the appeal is out of time.

The appeal can only be proper after an application has been made and authority granted for approaching the court out of time.

The appeal is therefore improperly before the court as it is out of time. It is accordingly struck off the roll.

Mugadza, Chinzamba & Partners, appellant’s legal practitioners

Civil Division of the AG’s Office, respondents’ legal practitioners