Timothy Jack Mwanje v Pan African Mining

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/356/14
HARARE 3RD JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/356/14

HARARE 3RD JUNE 2014					CASE NO LC/APP/H/15/14

& 20TH JUNE 2014

In the matter between:-

TIMOTHY JACK MWANJE				Applicant

And

PAN AFRICAN MINING					Respondent

Before The Honourable E Muchawa, Judge

For Applicant		W.L. Chirongoma (Legal Practitioner)

For Respondent		T Mukwindidza (Legal Practitioner)

MUCHAWA, J:

This is an application to introduce a fresh fact on appeal which was sought on the basis that respondent had failed to file its heads of argument as prescribed by the Rules of this Court and was therefore barred.  In that regard applicant claims to be entitled to apply for judgment in terms of Rule 19 (3) of the Labour Court Rules.

At the hearing of the application this court dealt with an oral application for upliftment of bar and condonation of late filing of heads of argument.

Respondent proceeded in terms of Rule 26 of the Labour Court Rules in  making the oral application which was granted.  From the submissions made it was clear that respondent, at the material time had no obligation to file heads of argument as their legal practitioners of record renounced agency on the 26 February 2014 after applicants had filed their own heads of argument on the 10 February 2014.  This was in the main appeal LC/H/866/13.  I noted that such renunciation happened within the 14 days within which such heads have to be filed.

I considered too that the respondent’s legal practitioners are said to have renounced agency without notifying the respondent.  Respondent has since engaged other lawyers who have since filed the heads of argument.

In the interest of justice I have lifted the bar and accepted the heads of argument as duly filed.

I now proceed to consider the application to introduce a fresh fact on appeal.

The background to this is that applicant filed an appeal against an arbitral award which found in favour of respondent and dismissed his claim for severance pay at the rate of 3 months pay for every year worked and instead awarded 2 weeks pay for every year of service.  At arbitration respondent did not produce any evidence to support his claim and a finding was made on the basis of documentary evidence produced by respondent regarding how two other employees, one said to be at the same level with applicant and another, a senior, was treated.

Heads of argument have been filed in respect of the main appeal and pleadings are therefore closed.   Applicant begs the leave of the court to file new evidence.

The basis of the application is that applicant has since come across evidence which shows that he should have been awarded severance pay as a managerial employee at the rate of three months salary for each year of service.  This evidence is said to be viva voce evidence to be given by a Mr Phiri, a former manager of respondent.

Applicant submits that he was absent at arbitration where his lawyer accepted the documentary evidence tendered.  If he had been, he claims that he would have shown that the two employees cited were of a lower rank to his.

Further submissions by applicant are that the new evidence will not change the nature of his argument on appeal but will assist the court to reach a just conclusion as all he is doing is to confirm the facts.

Respondent submits that applicant’s appeal is not based on points of law and does not raise questions of law.  Further it is argued that the present application is improper.

It is respondent’s contention that applicant simply seeks to challenge factual findings by the arbitrator based on the evidence that was presented during the hearing.  I was referred to the case of Sable Chemical Industries Ltd v David Peter Easterbrook SC 18/10 regarding what a point of law is.   The new facts sought to be introduced on appeal relate to applicant’s second and third grounds of appeal.  Ground 2 reads;

“He with respect grossly misdirected himself on the facts by finding that the two weeks for every year served was in accordance with company policy when no such copy of the company policy document to that effect was produced at the hearing.”

Ground 3 reads;

“The Honourable Arbitrator further misdirected himself on the facts by finding that there were two former employees of the respondent one who was senior and another junior who had retired on the same package.  The two retirees’ respective grades were both junior to appellant’s grade as a senior manager whilst the other retiree Richard Scott’s grade on annexure B to respondent’s heads was two grounds below appellant’s.”

Clearly the two grounds of appeal are factual and would therefore be incompetent as grounds of appeal.  Even if I was to find them as competent grounds of appeal, an application such as this is frowned upon by the courts.  In the case of Leopard Rock Hotel Co. (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) the grounds for adducing of fresh evidence on appeal are set out.  These grounds do not include the need to argue the dispute on the basis of new facts not presented in the court a quo.

In casu applicant asserts that his counsel in the tribunal a quo did not take instructions on the evidence presented by respondent.  This oversight led to the arbitrator making a decision without the evidence which is now being sought to be introduced.

I find that at the arbitration stage the evidence presented by respondent related to the policy on severance pay for an employee in applicant’s grade.  That is the issue applicant had brought for determination.  Applicant seems to have made no effort to obtain any evidence from other retirees as he now wishes to do.  Applicant did not exercise due diligence to get any evidence.  Rather applicant made submissions that “the award of 2 weeks’ pay is a minimum award. With the maximum being 3 months.”  The arbitrator, based on respondent’s evidence awarded the minimum 2 weeks’ pay per year of service.

The arbitrator cannot be criticized for failing to take account of evidence which was not before him.

I do not wish to set a precedent for litigants to treat this Court as a second court of first instance, a court in which they can try out the issues again on fresh facts if the first set proved inadequate (See Kearns v Waltes Enterprises S160/90)

In addition there should be finality to litigation.  As WESSELS CJ correctly stated in Colman v Dunbar 1933 AD 141 at 161.

“It is essential that there should be finality to a trial, and therefore it a suitor elects to stand by the evidence which he adduces, he should not be allowed to adduce further evidence except in exceptional circumstances.”

In the circumstances I find that applicant has not demonstrated any exceptional circumstances nor advanced any good grounds for the adducing of fresh evidence on appeal.

The application is accordingly dismissed with costs.

C Kuhuni, applicant’s legal practitioners

Bere Brothers, respondent’s legal practitioners