Raphael Musarurwa v Intercape Ferreira Mainliner (Pvt) Ltd

### Preamble
LC/H/32/2021
LC/H/251/19
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
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IN THE LABOUR COURT OF ZIMBABWE             JUDGMENT NO:LC/H/32/2021

HELD AT HARARE, 22 MARCH 2021 &                            CASE NO:LC/H/251/19

26 MARCH 2021

In the matter between

RAPHAEL MUSARURWA                                                                      APPELLANT

And

INTERCAPE FERREIRA MAINLINER (PVT)LTD                              RESPONDENT

Before the Honourable Manyangadze J

For the Appellant                    Mr T. Kanengoni (Trade Unionist)

For the Respondent                Mr M. Moyo (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the determination of the respondent’s Chief Executive Officer (CEO) dated 22 November 2019, in terms of which the appellant was dismissed from employment.

The brief facts of the matter are that the appellant was employed by the respondent as a driver. He was charged with misconduct in terms of the Collective Bargaining Agreement: National Employment Council for the Transport Operating Industry, Statutory Instrument 26 of 2017. The charges were:

Disobedience to an order given by an employer.

Making threats.

Gross negligence.

The Disciplinary Committee that heard the matter in the first instance found the appellant guilty of the second charge, whose factual particulars were that he threatened a senior manager, one Heymrich Augustyn, as he was being interrogated on the alleged misconduct. The Disciplinary Committee was however deadlocked on the 1st and 3rd charges, necessitating referral to the CEO in terms of the Code of Conduct. The CEO found the appellant guilty of the two charges i.e. the 1st and 3rd charges, and imposed a penalty of dismissal.

Aggrieved by his conviction and penalty, the appellant lodged an appeal with this court.

The respondent raised a point in limine, to the effect that the appeal is fatally defective and should be struck off the roll. The basis for the preliminary point is that the notice of appeal does not comply with rule 19 (1)(a) of the Labour Court Rules, 2017.  Rule 19(1)(a) provides for the format of a notice of appeal, which must be in Form LC 4. Form LC 4 requires that grounds of appeal be “concise and precise”. The respondent avers that the appellant’s grounds of appeal are not concise and precise.

An examination of the notice of appeal shows that it covers about 6 pages. Firstly, it has 2 pages outlining the background to the case. This is a narration of what allegedly transpired and led the appellant to being charged with misconduct. This is followed by about one page of what are described as “grounds of appeal”. This is then followed by two pages of what is described as “detailed grounds of appeal”. Further to that, there is a two page affidavit in which there is reference to a draft order.

It is not clear in terms of what rule or provision the appellant filed his notice of appeal. He insists that it complies with rule 19(1)(a), when it contains features that are alien to rule 19(1)(a) or any of the rules of the court. The clear and simple format in LC 4 makes no reference to an affidavit or draft order. Mr Kanengoni, the trade union official who represented the appellant, averred that the respondent should have brought his point in limine by way of a court application. This was another strange procedure the appellant was proposing. He did not point to any rule that required that points in limine be raised by way of an application.

Mr Kanengoni, during oral submissions, contended that save for the fact that the notice of appeal is too long, it is still permissible. This was an acknowledgement that the grounds of appeal, if at all they can be described as such, are too long.

Realising the predicament in which his client was, Mr Kanengoni resorted to imploring the court to use its discretion in terms of rule 32, which in certain situations permits a departure from the rules. He then made the rather self-defeating argument that the appellant should be excused as he is a layman who relies on advice. Whose advice? As a trade union practitioner, the appellant’s representative is supposed to exhibit an appreciable knowledge of labour law and procedure. Though he may not possess the same knowledge and litigation skills of an advocate, he is reasonably expected to be familiar with the basic rules of this court.

The inelegantly drafted and prolix grounds of appeal filed on behalf of the appellant do not reflect even the elementary skills required in the drafting of a basic court document like a notice of appeal. Nowhere in Form LC 4 is a historical background of the case required, or an affidavit and draft order. One is left wondering whether the appellant wanted to file an appeal or some kind of an application.

The principle that a notice of appeal should contain grounds of appeal that are clear and precise was explained at length by GARWE JA in the case of Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/17. The learned judge of appeal, from page 12 to 16 of the cyclostyled judgment, made reference to a long line of authorities which dealt with this issue. He cited with approval the remarks of LEACH J in Songono v Minister of Law and Order 1996 (4) SA (Eastern Cape Division), at page 385 G-H:

“…it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the finding of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet…”

and further at 386 A – B that: -

“… the lengthy and rambling notice of appeal filed in casu falls woefully short of what is was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not the point – the point is that the notice must clearly set out the grounds and it is not for the court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out…” (emphasis my own)”

The notice of appeal in casu is similarly afflicted.

Although persons who find themselves involved in litigation are free to choose who to represent them, it is encumbent upon them to engage someone with the requisite knowledge and skills. They are bound by the pleadings filed, and submissions made on their behalf, by their representative. There is a limit to the extent to which the court may excuse litigants from the consequences that flow from their representatives’  ineptitude . See Bishi v Secretary for Education 1989 (2) ZLR 240 (H).

In the circumstances, the court finds considerable merit in the point in limine raised by the respondent. The proper course of action is to order that the appeal be struck off the roll.

In the result, it is ordered that:

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

The appeal be and is hereby stuck off the roll.

The appellant bears the respondent’s costs.

Dube – Banda, Nzarayapenga & Partners            Respondent’s Legal Practitioners