Tapiwa Sunday v UNKNOWN Respondent

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/690/16
HARARE, 18 OCTOBER 2016
CASE NO.
JUDGMENT NO. LC/H/690/2016
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/690/16

HARARE, 18 OCTOBER 2016			        	     CASE NO. LC/H/676/14

AND 4 NOVEMBER 2016

In the matter between:-

TAPIWA SUNDAY				Appellant

This matter was referred to me for determination on the record in terms of Section 89 (2) (a) (i) of the Labour Act [Cap 28 : 01].  It is one of the matters that have otherwise been lying idle due to failure on the part of the Appellant to pay sheriff’s costs for services of Notice of Set-Down.

The material background facts are that the Appellant was dismissed from employment following disciplinary hearing conduced on the 3rd of June, 2014.  The allegations were that the Appellant had breached the terms of his contract of employment by loading the company vehicle and driving the loaded vehicle outside the regulated time of 1800 hours (set by Environmental Management Agency Regulations).  He was alleged to have arrived at the depot at 22.18 hours.  The second allegation was that Appellant had been grossly negligent in the performance of his duties to the extent of incurring a loss of 265 litres of petrol.  The third count was that the Appellant had unlawfully manhandled a security detail who was restraining him from attempting to add diesel to petrol that he had delivered this was in a bid to cover for the loss of petrol.

The Appellant was found guilty on all three counts.  He was consequently advised of his dismissal through a letter dated 4th June, 2014.  The Appellant aggrieved then noted an appeal against the Disciplinary Committee findings to the Chief Executive Officer on the 20th June, 2014.  On the 13th of August 2014 the Appellant then noted an appeal to this court.

The appeal was noted on the basis of one ground which the Appellant also mistakenly took as a point in limine.

The grounds reads as follows:

“In Limine

The Chief Executive Officer of Respondent failed to make a response to Appellant’s appeal made in terms of Section E.1 of the Code of Conduct for the Transport Operating Industries, Statutory Instrument 67 of 2012.  By so doing the Chief Executive Officer frustrated the Appellants efforts to exhaust internal remedies to this case.  The Chief Executive Officer’s decision not to act was tantamount to frustrating the course of justice.”

Despite having been served with Notice by the Registrar the Respondent did not file its response to the appeal.  The court be that as it may shall proceed to determine the matter on the basis of papers as directed by the Senior Judge’s directorate dated 3rd October, 2016.

It is very clear on the basis of the papers that the appeal clearly stands to be dismissed.  There are two fundamental reasons.

Firstly the appeal was noted in the absence of a decision by the Chief Executive Officer.  It is a trite position at law that an appeal is limited to the issues in the record and those ensuring from the proceedings in the court a quo. See Chikanda vs United Touring Co. SC 7/99. The Appellant clearly took a wrong procedure by seeking to appeal where there is no record of proceedings pertaining to the appeal placed before the Chief Executive Officer.  The second reason that the Appellant was inclined to attack the failure on Respondent’s part to comply with processes under the relevant Code of Conduct he ought to have applied for a review.  By lodging an appeal he clearly adopted the wrong procedure. It is trite that where the reason for wanting to have the judgment of a court set aside or a process to be set aside is due to some grievance against the method of the trial it is proper to bring the case on review and not an appeal.  See Pawanda vs Murewa Rural District Council LC/H/51/2010 and Herbstein & Van Winsen – The Civil Practice of the Superior Courts in South Africa 2nd Ed at p668.

For these two reasons therefore the appeal clearly cannot be allowed to stand.

In the result the following order is made:

The appeal be and is hereby dismissed as being improperly placed before the court.

There is no order as to costs.