Turnall Holdings Limited v Constance Kadenga N.O. & Caleb Musodza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/48/2020
CASE NO. LC/H/APP/484/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/48/2020

CASE NO. LC/H/APP/484/19

HARARE, 4 JANUARY 2020	     	               REF CASE: LC/H/LRA/813/18A

AND 28 FEBRUARY, 2020

In the matter between:-

TURNALL HODINGS LIMITED						Applicant

AND

CONSTANCE KADENGA N.O.						1st Respondent

CALEB MUSODZA								2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:			Wintertons Legal Practitioners

For Respondent:			Sinyoro & Partners (Legal Practitioner)

HOVE J:

This is an application for leave to appeal against a decision of this court handed down on 26 July 2019.

The application is in terms of section 92F of the Labour Act [Chapter 28:01] (the Act) which requires that an application for leave to appeal against a decision of the Labour Court on a question of law shall lie to the Supreme court and a party seeking to

appeal from any decision of the Labour Court shall seek, from a Judge who made the decision, leave to appeal the decision. The section provides as follows;

92F

(1) 	any appeal on a question of law shall lie to the Supreme Court from any decision of the Labour Court.

(2)	any person wishing to appeal from any decision of the Labour Court on a question of law in terms of subsection (1) shall seek from the President who made the decision or, in his or her absence, from any other President leave to appeal that decision.

It is therefore incumbent on a party seeking to appeal, to show that the appeal is

on a question of law. Further, the party must also show that it has reasonable prospects of success. In Van Herden v Cronwright and others 1985 (2) SA 342(T) the court emphasized this later requirement thus;

“It was emphasized that whilst it is important to keep in mind that the intention of the legislature in requiring leave to be granted is to limit the number of cases which might be taken on appeal, the criterion should be whether there is reasonable prospects of success on appeal. The major consideration is whether applicant enjoys, good prospects of success on appeal”.

To establish whether applicant’s appeal is (1) on a question of law and (2) has prospects of success, the court must of necessity go to the notice of appeal and the draft grounds of appeal that the applicant intends to file with the Supreme court.

The notice of appeal filed with the court in casu gives reasons for appeal and in those reasons on page 5 of the record, the applicant alleges that the court misdirected itself on two aspects, viz;

1)	The court ought to have found that the applicable salary for the 2nd respondent was $7 350, it having been reduced by virtue of a board resolution, and

2)	The court ought to have found that the 2nd respondent was not entitled to clause 31 benefits.

Further to these two aspects, the applicant further alleged that the court erred in

remitting the matter back to the 1st respondent for reassessment of terminal benefits

when no terminal benefits are due to the 2nd respondent.

The court is of the view that these reasons for appeal are merely intending to

question factual issues which were before the court a quo. It is a factual issue to

determine a salary due to an employee and again it is a factual matter to determine

whether or not clause 31 benefits were payable. The two issues raise no point of law.

The 3rd issue also raises a factual issue that no benefits were due to the 2nd

respondent.

The courts have stated that the term “question of law” in relation to appeals

from  decisions of the Labour Court has three distinct but related meanings to wit;

a)	an issue that the law has authoritatively answered to the exclusion of the right of the court to answer as it thinks fit in accordance with the truth of justice of the matter.

b)	a question as to what the law is, and

c)	an issue that is within the province of the Judge instead of the jury.

See in this regard the cases of Muzuva v United Bottlers (Private) Limited 1994

(1) ZLR 217 (S), and Sable Chemicals Industries v Easterbrook 2010 (1) ZLR 342 (S).

The two issues raised above by the applicant do not seek to question what the law is, it is questioning conclusions drawn by the court in view of the established circumstances. These are factual issues and not issues that the law has authoritatively answered to the exclusion of the right of the court to answer as it thinks fit. No questions of law have been raised.

The applicant itself in heads of arguments filed in its behalf states the following in paragraph 4 there of:

“The proposed grounds seek to challenge factual findings by the Court relating to the quantum of terminal benefits awarded to the 2nd respondent”.

Again in paragraph 24 of the same heads of arguments, the admission is made on the applicant’s behalf that:

“It is admitted that the applicant intends to challenge the factual findings by the Court”.

So, that the appeal intends to challenge factual findings is beyond question. This is not permissible in terms of section 92F of the Act unless the applicant can show that in drawing the factual conclusion that the Court did, the Court so misdirected itself to the extent that no reasonable person applying their mind thereto could have arrived at

such a conclusion on the facts. Thus an appeal against a serious misdirection on the facts or the giving of reasons that are bad in law constitutes an appeal on a question of law. This allegation was made by the applicant in its heads of arguments paragraph 24 where the applicant cited the case of Elineth Dick v Zimbabwe Revenue Authority SC 16/2015 where the Court held that;

“It is supported by the case of Reserve Bank of Zimbabwe v Granger & Anor SC 34/2000 where it was held as follows:

‘a gross misdirection of facts is either a failure to appreciate a fact at all or finding of fact that is contrary to the evidence actually presented, or a finding that is without factual basis or based on misrepresentation of facts’   ”.

The court must therefore assess whether or not the decision being sought to be appealed against was such as one can say was grossly unreasonable or irrational as was held in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

A brief background to the facts which relate to the first issue is necessary to enable one to decide whether the finding of the court was, not only unreasonable but grossly unreasonable or grossly irrational.

The parties agreed in the contract of employment between them that in the event that there was a review of salary and benefits, there would be need to reduce the new agreement to writing such that a new annexure would be attached to the existing contract between the parties.

The management of the company agreed in a board meeting that there would be a salary cut for everyone. The 2nd respondent by virtue of his position, was part of that meeting and he signed the resultant board resolution to this effect.

There was however no new annexure to reflect this new position in regard to the 2nd respondent’s salary. It was a term of the contract that for there to be a binding alterations to the contract of employment, the amendment had to be reduced to writing and signed by both parties. This was not done and the court on the basis of those facts found that there had not been a valid cut in salary vis a vis the 2nd respondent’s salary.

These were the basic and brief facts which were placed before the court, they were in fact common cause, the factual conclusion drawn by the Court cannot be regarded as, or characterized as being irrational or a serious misdirection on the facts as described in Hama v National Railways of Zimbabwe (supra).

That the applicant failed to vary the 2nd respondent’s employment contract to incorporate the board resolution was an accepted fact. It was an admitted fact which was placed before the court aquo. On paragraph 9 of its heads of arguments, the admission is again made when it was stated on behalf of the applicant that there was

“ a failure to vary the 2nd respondent’s employment contract to

incorporate the import of the board resolution.”

In view of these agreed facts, it is the applicant who is being irrational in trying

to enforce a non existant term of the contract of employment.

I am not convinced that the Court’s conclusion can be properly classified as irrational. In relation to the 2nd issue raised, to wit,

(b)	 the Court ought to have found that clause 31 benefits were not or ought not to

have been payable.

The court on the basis of the provisions of clause 31 of the contract of employment found that the appellant was entitled to the benefits listed in clause 31. This was a factual finding. The applicant fails to show why the interpretation accorded to the provisions was grossly unreasonable for it is only upon showing that the interpretation was grossly unreasonable that it can be allowed to approach the Supreme Court on appeal.

It argues that the court should not have interpreted the clause in the manner that it did but does not go on to show how the Court ought to have interpreted the clause. Further and more importantly, he does not show that the interpretation accorded to the clause was grossly irrational. This failure to show gross unreasonableness on the part of the decision of the Court makes the challenged finding a mere finding of fact which is not appealable to the Supreme Court.

The third ground

The applicant argues in this 3rd ground that the Court should have found that no benefits were due to the 2nd respondent and should not have remitted the matter under

those circumstances. Whether or not benefits were due is a factual issue for it to be regarded as a point of law which can be appealed against, it must be shown that the finding was not only unreasonable but grossly unreasonable.

This is the position of law as was held in the case of Reserve Bank of Zimbabwe v Granger & Anor SC 34/2000 where it was held as follows;

“A gross misdirection of facts is either a failure to appreciate a fact at all or a finding that is contrary to the evidence actually presented, or a finding that is without factual basis or based on misrepresentation of facts”

The applicant makes broad averments that the Court failed to appreciate facts without showing which facts were not appreciated. Applicant fails to show which findings were contrary to the facts. Again no gross unreasonableness in the findings is demonstrated.

The 3rd ground is challenging a finding of fact and therefore not appealable to the Supreme Court by virtue of the provisions of S.92F of the Act.

In an application of this nature, the applicant must demonstrate that it has reasonable prospects of success.

The applicant’s draft notice of appeal to the Supreme Court on pages 19 and 20 of the record states that the intended appeal is against part of the judgment of the Labour Court. The applicant’s intended grounds of appeal go beyond the preamble

and states that the appeal is against the remittal of the matter to the 1st respondent for assessment of terminal benefits.

The intended grounds seek to attack the entire factual findings made by the Court. The notice of appeal therefore tells a lie about itself. It tells a lie to the Court.

The relief sought is also not in tandem with the notice of appeal which is seeking to only attack part of the Judgment of the Labour Court. It seeks instead to set aside the entire decision of the Labour Court.

The applicant argued that the draft notice is to be placed before the Supreme Court and not before this Court. The only reason why the rules require that a draft notice of appeal and grounds be filed with the application for leave to appeal is to enable the Court to assess the requirements, that is, whether the intended grounds raise questions of law and to assess the prospects of success on appeal.

The notice of appeal couched as in casu, and contradicting the intended grounds of appeal and the relief sought has very poor prospects of succeeding in the Supreme Court The applicant cannot succeed when it is appealing against part of a judgment and then seek to set aside the whole judgment. The intended notice of appeal is defective and has no prospects of success.

In the case of Tamanikwa & anor v Zimbabwe Manpower Development Fund and another SC 73/17 the court held that a notice of appeal in which an appellant appealed against only a portion of a Judgment but sought as his relief in the appeal the setting aside of the entire judgment was a nullity. The application in casu is seeking to have

this Court grant leave to appeal to enable it to approach the Supreme Court with a nullity since its intending in its notice to appeal against only a portion of the judgment but the relief that would be sought would be to set aside the entire Judgment.

The applicant’s prospects of success are thus very dim.

The Court will not exercise its powers of granting leave to appeal when it has come to the conclusion that the intended appeal is seeking to challenge factual grounds contrary to the provisions of section 92F and it has not been demonstrated that the factual findings being intended to be challenged are so grossly unreasonable that no Court which would have applied its mind to the decision to be made would have arrived at such a conclusion. Further, where the Court has also come to the conclusion that on the merits, prospects of success on appeal is so slender that granting leave to appeal is not justified. The only result of granting leave to appeal would be the hearing of an appeal which would be declared a nullity and also as being improperly before the court for failing to appeal on points of law.

In the result, the application for leave to appeal must be denied.

Order

The application for leave to appeal is dismissed with costs.

Wintertons Legal Practitioners	-	Applicant’s Legal Practitioners

Sinyoro & Partners 	- Respondent’s Legal Practitioners