Richard Rudziva v Zimbabwe School Examinations Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 JUNE, 2023
JUDGMENT NO. LC/H/279/23
CASE NO. LC/H/509/21
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 20 JUNE, 2023

AND 20 SEPTEMBER, 2023

In the matter between:-

JUDGMENT NO. LC/H/279/23 CASE NO. LC/H/509/21

RICHARD RUDZIVA	Appellant

Versus

ZIMBABWE SCHOOL EXAMINATIONS COUNCIL	Respondent

Before The Honourable L. Hove, Judge:

For Appellant		: Mr.M.H.Chitsanga For Respondent	: Mr. Z.T. Zvobgo

HOVE J:

This is an appeal against the decision by the respondent’s appeals tribunal which upheld the decision to find the appellant guilty of acts of misconduct and to dismiss him from employment.

When the matter was initially set down, there were preliminary points raised which were disposed of by the Court see order number LC/H/ORD/347/2022.

The appellant was grieved and sought leave to appeal against the Court’s decision to the Supreme

Court. Leave was granted and the matter was referred to the Supreme Court.

The Supreme Court declined to deal with the appeal at that juncture preferring to deal with the appeal after the Labour Court must have decided the whole matter instead of dealing with the matter in a piecemeal fashion. The matter was referred back to the labour court.

When the matter was again set down for hearing two issues were raised, these were;

1. The law does not permit the challenging of factual matters on appeal. One can only appeal against points of law. In other words, one cannot challenge factual findings made by an inferior Court or tribunal. Such findings do not raise any points of law. To challenge factual findings there must be an allegation of gross unreasonableness. If the ground does not aver that there is gross unreasonableness, then factual findings cannot be challenged, such a ground of appeal is invalid.

The respondent placed reliance on the case of Zvokusekwa v Bikita Rural District Council SC 34/16. It was further argued that the Court had already decided on the validity of the grounds. This point was therefore argued to be without merit and ought to be dismissed.

The appellant argued to the contrary that there must be specific allegations that there was gross unreasonableness before a ground challenging factual issues can be passed as a ground that amounts to a challenge on a point of law.

This argument raised outside the merits of the case can only serve to raise confusion especially when the Court has already pronounced itself on the validness of the grounds of appeal. What must happen now is all the issues arising and ancillary to the validity of the grounds must be argued together with the merits of the appeal.

The Court cannot deal with the issues in a piecemeal fashion. The court has already pronounced itself on the validity of the grounds in relation to them being precise and concise. It is rather sloppy on the part of a legal practitioner to argue one aspect of a preliminary issue, and then seek to raise another aspect at a latter stage. This type of improvident behavior can only result in unnecessary delays to the prejudice of the other and inconvenience to the court. The matter must be set down and all the issues that remain outstanding must be dealt with together with the rest of the merits of this case.

The other issue raised is whether or not ground of appeal No. 4 can be argued during the appeal or whether it can be made a preliminary point.

The respondent argues on the strength of Nhari v Zimbabwe Allied Banking Group SC 51/1eing raised shows a brith3 that the ground can be argued on appeal. The appellant argues on the contrary that the Supreme Court cases of Nyoni v Secretary of Public Service Labour and Social Welfare and PTC v Chizema have made it clear that delay alone cannot justify reinstatement it only gives the right to seek a mandamus.

Whether or not a delay can justify reinstatement or whether or not it only gives the right to seek a mandamus is an issue that can be properly argued on appeal. Whether or not it can be raised as a preliminary point will depend on the particular circumstances of any given matter. This can however not bar a person from raising the issue in an appeal.

This challenge must again be argued together with the merits of the appeal. The manner in which preliminary issues have been raised show a blithe disregard to the need to secure the expeditious resolution of labour disputes as mandated in terms of section 2A of the Labour Act chapter 28:01 (the Act)

In the result, the points raised can properly be argued together with the appeal. The Court cannot hear bits and pieces of the matter at a given time. The matter must be dealt with in a holistic and wholesome manner to allow for a proper and systematic ventilation all the issues which arise in this dispute.

Order:

The issues raised must be argued together with the rest of the merits of this appeal.

The Registrar is to set the matter down for continuation.

JUDGE …………………………………