Simbarashe Chabata v Nanavac Investments (Pvt) Ltd t/a Choppies Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/26/2020
HARARE, 24 SEPTEMBER 2019
CASE NO. LC/H/APP/402/19
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/26/2020

HARARE, 24 SEPTEMBER 2019		    CASE NO. LC/H/APP/402/19

AND 31 JANUARY 2020

In the matter between:-

SIMBARASHE CHABATA						Applicant

And

NANAVAC INVESTMENTS (PVT) LTD				 Respondent

t/a CHOPPIES ZIMBABWE

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr T. Marume (Legal Practitioner)

For Respondent		Mr S. Mpofu (Human Resources Manager)

CHIDZIVA, J:

This is an application for leave to appeal against the judgment of this court that was handed down on 31st May 2019. In its judgment this court ordered that the decision of the Negotiating Committee be set aside.

Brief Background of the Matter

The Applicant was employed by the Respondent as a till supervisor and was based at Choppies Mutare. In June 2018 a massive fraud was discovered in which the till operators and supervisors were conniving to defraud the company of cash amounting to US$106 278-05. The supervisors were used as conduits for taking the money out of the shop as they were not searched on their way out and charges were preferred against the Applicant and he was found guilty of the offence and dismissed from employment.

The Applicant then appealed to the NEC Local Joint Committee which upheld the decision of the employer to dismiss him from employment. He then applied to this court for review of the proceedings that were conducted by the NEC Negotiating Committee.

This court ordered the setting aside of the proceedings and the applicant is new applying for leave to appeal to the Supreme Court.

The Applicant has submitted that it has bright prospects of success on appeal because

This court erred at law and grossly misdirected on the facts in concluding that the Respondent was denied an opportunity to make adequate representations by NEC Negotiating Committee when the appeal board was mandated to decide the matter on record in terms of Section 7.3 of the Collective Bargaining Agreement for the Commercial Sector.

The Labour Court erred at Law in overlooking the fact that there was a fatal non joinder of the NEC Negotiating Committee to the review proceedings.

The court erred at law in failing to give an order which decisively defines the rights of the parties.

The Applicant has reasonable prospects of success on appeal.

The Respondent is opposing this application on the following grounds,

Deciding a matter on record does not mean denying the other party the right to be heard.

It is the duty of the party seeking a joinder to make an application. In this case the NEC Negotiating Committee did not make an application for joinder and they are not a necessary party for a joinder.

In setting aside the decision of the NEC Negotiating Committee the court rendered it null and void and the parties then resorted to their status quo ante.

There are no prospects of success on appeal.

It is a trite principle of law that in cases of this nature the Applicant should establish that there are reasonable prospects of success on appeal. In the case of Beatley’s Trustee v Pandon & Co 1935 TPD 365 at 366 it was stated that for reasonable prospects of success to be established it should demonstrated that the grounds of appeal are reasonably arguable.

Ebrahim JA in the case of S v McGown 1995 (2) ZLR 81 described reasonable prospects of success as follows,

“Clearly it would be appropriate to refuse an application that has little or no prospects of success or one that is frivolous. But where there is substance in the argument, there must ipso facto be reasonable prospects of success. At this stage I am not being called on to decide finally whether the argument is sound … At this stage, too, I am not looking at the whole record but merely at the judgment. A detailed analysis of the argument at the appeal may show that it is unsustainable or on the other hand, that it is unanswerable.”

From the arguments that have been presented by both parties it is clear that this is an arguable case where parties should be given the chance to argue their case.

In the case of Zimnat Life Assurance Ltd v Dikunye 2008 (2) ZLR 200 at 202D Cheda JA had this to say,

“… the point raised by the applicant in its ground of appeal on the point of law is of such importance that I am persuaded that an opportunity should be allowed for it to be argued on appeal. It is for that reason that I have decided to exercise my discretion, condone the delay and allow the application.”

I am of the view that the Applicant has raised points of law which should be allowed to be argued on appeal. To that end having found that the application is merited. I therefore order as follows;

The applicant be and is hereby granted leave to appeal to the Supreme Court against Judgment No. LC/H/137/2019 under case No. LC/H/REV/01/19.

There shall be no order as to costs.

Marume & Furidzo, applicant’s legal practitioner