Three WAYS Safaris V Solomon Chuma

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/23/2016
HARARE, 22 MARCH 2016 &
CASE NO LC/MS/46/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MS/23/2016

HARARE, 22 MARCH 2016 &			                    CASE NO LC/MS/46/2015

13 MAY 2016

In the matter between

THREE WAYS SAFARIS						            APPELLANT

Versus

SOLOMON CHUMA							 RESPONDENT

Before the Honourable D L Hove J

For the Appellant	   C Ndlovu (Legal Practitioner)

For the Respondent       Ms M Chikonzi (Trade Unionist)

HOVE J:

At the hearing of this matter the respondent raised preliminary issues and these were that:

The appellant had not been formally served with the appeal and only got to know of it from the Registrar.

The appellant was not served with their notice of assumption of agency.

The appellant failed to file their heads of arguments as is required by the rules of this court.

The grounds of appeal raise no point of law.

The appellant accepted that the appeal was not properly served on the respondents. The respondents only got to know of the appeal after the Registrar had sent them a notice to respond. From the above one cannot impute any wrong doing on the respondent as they say that they were yet to serve the respondent. The first objection is therefore found to be one without merit in view of the circumstances of this matter.

The second objection is also meritless as there was no need for the appellant’s lawyers who were noting the appeal to file and serve any notices of assumption of agency.

The third ground for objecting is that the appellant failed to file their heads of argument in terms of the rules and that they were barred.

The appellant disputed that they had failed to act in terms of the rules. The requirement to file heads runs as soon as they receive a notice of response but since the respondent had not been served with the appeal and there had not been a notice of response, their obligation to file the rules had not yet started running.

The record shows that a notice of response was filed but the appellant said that they had not been served. The respondent also could not confirm whether or not the appellant had been served in view of the circumstances of this case.

It is therefore clear from the facts that one cannot also impute any wrong doing on the appellant in this regard and the preliminary point must fail.

The last preliminary point was that the grounds of appeal do not raise any point of law.

The appeal is one against the decision of an arbitrator handed down on 21 September 2015.

Appeals from decisions of an arbitrator to the Labour Court are governed in terms of section 98 (10) of the Labour Act [Chapter 28:01] (“the Labour Act”). It provides that:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

The ground of appeal which has been placed before this court is on page 9 of the record and it reads:

“The arbitrator erred at law in finding that the respondent was dismissed in May 2015 when he deserted employment before disciplinary proceedings were concluded.”

This ground of appeal raises no point of law. It is based in facts. It is a position of law that appeals of this nature can only lie to the Labour Court on points of law and not on points of facts.

There is no allegation that there was serious misdirection on the facts so as for the challenge to amount to a ground of law.

In the case of National Foods Limited v Mugadza SC 105/95 the court stated as follows:

“It is true that this court only has to hear an appeal from the tribunal on a point of law. But clearly if there is a serious misdirection on the facts it amounts to a misdirection in law.”

So it is clear that unless there is alleged to be a serious misdirection on the facts then the court cannot hear an appeal based on the facts.

As stated, in casu there is no allegation that the misdirection was so serious as to amount to a point of law.

The case of Reserve Bank of Zimbabwe v Carrine Granger & Anor SC 34/01 also makes the point that if the appeal is to be related to facts:

“There must be an allegation that there has been misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision.”

See also Hama v NRZ 1996 (1) ZLR 664, and Sables Chemical Industries Ltd v Easterbrook 2010 (1) ZLR 342 (S).

In the result the appeal is found to be improperly before the court. The last preliminary issue is upheld. The following order is made:

The appeal be and is hereby dismissed with no order as to costs.

Ndlovu & Hwacha, appellant’s legal practitioners