Ossybys Chibvongodze v Minister of Home Affairs and Cultural Heritage & Anor

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/310/24
HELD AT HARARE 18TH JULY 2024
CASE NO. LC/H/105/24
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 18TH JULY 2024 AND 23 JULY 2024

In the matter between

OSSYBYS CHIBVONGODZE

And

MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE

CIVIL SERVICE COMMISSION

BEFORE THE HONOURABLE MAKAMURE , JUDGE

FOR THE APPELLANT	: Ms E.S. NDORO FOR BOTH RESPONDENTS	:Ms N. MPANDE

JUDGMENT NO.LC/H/310/24

CASE NO. LC/H/105/24

APPELLANT

1ST RESPONDENT

2ND RESPONDENT

MAKAMURE J:

This is an appeal against the respondents’ decision to dismiss the appellant.

At the commencement of the hearing Ms Ndoro who appeared on behalf of the appellant indicated that in noting the appeal they relied on S92EE of the Labour Act, Chapter 28:01(the Act). Upon inquiry from the Court why they relied on S92EE of the Act when an appeal was under consideration it was stated that, that stance was adopted because the proceedings were tainted with bias. In addressing the Court both grounds for review and appeal were interchangeably referred to. Indeed paragraph 6 of the Heads of Argument addressed bias while paragraphs 12-14 addressed irrationality and paragraphs 17 to18 addressed the question of unfairness.

After the address on behalf of the appellant , an address on behalf of the respondents was made. Ms Mpande who appeared on behalf of the respondents chose to abide by the papers filed of record and insisted that the appeal be dismissed as the offence committed by the appellant had been proved. The Court inquired of Ms Mpande whether or not it was proper for an appeal to be brought in terms of S92EE of the Act. In response Ms Mpande stated that it was not proper and further that the appeal ought to have been noted in terms of either S92D or S92E of the Act. In reply Ms Ndoro agreed with Ms Mpande that the appeal should not have been brought in terms of S92EE.The concession was well made. This is in view of the clear provisions of the Act .

Below I have quoted in full provisions of the Act showing that review and appeal are two separate processes. One can not choose to mount an appeal on the basis of provisions for review neither should a review be filed on the basis of provisions for appeal.

The Act provides as follows:

‘92D Appeals to the Labour Court not provided for elsewhere in this Act

A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.

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92E Appeals to the Labour Court generally

An appeal in terms of this Act may address the merits of the determination or decision appealed against.

An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.

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92EE Grounds of review by Labour Court

Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.’

The Rules of this Court , Statutory Instrument 150 of 2017(the Rules) provide for situations where a party wants to note an appeal and at the same time wishes to make an application for review. Rule 19(3) of the Rules provides as follows:

‘ (3) A person making an appeal under this rule who also wishes to seek a review of the proceedings in respect of which he or she makes the appeal shall, at the same time, complete in three copies of a notice of review in Form LC 4 and serve such notice together with the notice of appeal under this rule.’

The above provisions show that the Legislature anticipated situations where a litigant   would want both processes done. That means a litigant is free to choose to do one or both of them. There is therefore no reason to resort to provisions for review where one is pursuing an appeal and equally a litigant cannot use provisions for noting an appeal where they want to apply for review.

As already indicated the concession made on behalf of the appellant was well made. This means that the appeal is not properly before me. It can only be struck off the roll.

In view of the foregoing it is ordered that:

The matter be and is hereby struck off the roll.

TARUGARIRA SANDE ATTORNEYS ,APPELLANT’S LEGAL PRACTITIONERS

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE, FOR THE

RESPONDENTS