Tawanda Mutakiwa v IL Cohen

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/417/14
HELD AT HARARE 18TH JUNE 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/417/14

HELD AT HARARE 18TH JUNE 2014			CASE NO LC/H/274/13

& 4TH JULY 2014

In the matter between:-

TAWANDA MUTAKIWA					Appellant

And

IL COHEN							Respondent

Before The Honourable E Muchawa, Judge

Appellant			In person

For Respondent		T Gonese (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award which found in favour of the respondent.

Appellant was employed by the respondent as a gardener since 2003 and was staying at respondent’s premises until November 2012.  It was agreed that appellant had last been paid a salary some time in 2005.  What was disputed was whether the employment relationship had ceased in 2005. (as alleged by respondent) or in 2012 (as alleged by appellant).  The arbitrator found that the employer – employee  relationship had ceased in 2005 and that any issue of unlawful dismissal and unpaid wages had consequently fallen away by prescription.

It is the above findings that are the subject of this appeal.  The lengthy grounds of appeal are summarised below;

The arbitrator erred on a point of law in finding as she did without the employment records which are to be generated by respondent.

The arbitrator erred on a point of law in accepting that the fallen tree was the cause of problems and also accepting appellant was providing free services to respondent contrary to the Labour Act {Chapter 28:01].

The arbitrator erred on a point of law that the appellant carried his gardener duties as this was not challenged and was engaged in carpentry duties during weekends and its off day.  Further appellant survived on donations.

The claim by the arbitrator that there was no information on the wages owed yet the computation submitted to the Arbitrator shows the whole year 2005 as not paid wages this was the period when hyper inflation was taking its toll on all Zimbabweans.

Appellant prays for reinstatement with back pay or damages in lieu of

Reinstatement.

The appeal is opposed.  A preliminary point was raised that the appeal is wrongly before this court as it does not raise any point of law but is predicated on the factual conclusions of the arbitrator.

Section 98 (10) of the Labour Act [Chapter 28:01] clearly states that an appeal from an arbitrator’s award shall lie to the Labour Court only on a point of law.

I was referred to the case of Muzuva v United Bottlers (Pvt) Ltd  1994 (1) ZLR 217 wherein a point of law has been defined.  That case lists three instances that constitute a point of law as follows:

a question which the law itself has authoritatively answered to the exclusion of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter;

a question as to what the law is.  On appeal the question for argument and determination is what the true rule of law is on a certain matter

any question which is within the province of the judge instead of a jury.

I find that appellant’s grounds of appeal do not fall into any of the above

stated definitions of a point of law.  Rather, they all fit squarely into the answering of the question of what would be considered to be the truth and justice of the matter.  This falls outside and is excluded from what a point of law is.  For the avoidance of doubt, appellant is challenging the factual conclusions of the arbitrator.

It seems to me that the arbitrator followed the approach in Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) and weighed the two competing probabilities presented by the parties and selected the factual conclusion that seemed to be the more plausible.

Appellant has also not pleaded that there was a gross misdirection on the facts which is so unreasonable that no sensible person would have reached such a conclusion.  (See Reserve Bank of Zimbabwe v Comine Granger and Martha Mataruka 1996 (1) ZLR 664.

The attempt to incorporate this into the heads of argument does not help appellant.  Equally the repeated use of “erred on a point of law” does not turn a factual point, into a point of law.

As noted in TM Supermarket v Mangwiro 2004 (1) ZLR 186 at 189 D - F, an appeal that is defective and raises grounds of fact is not properly before the Court and should be struck out.

Accordingly it is ordered that this matter be and is hereby struck off the roll.  There is no basis on which I can proceed to the merits of the matter.

Gonese Attorneys, respondent’s legal practitioners