Zimbabwe OPEN University V Gideon Magaramombe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/105/13
HELD AT HARARE 5TH MARCH, 2013
CASE NO LC/H/57/11
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/105/13

HELD AT HARARE 5TH MARCH, 2013	              CASE NO LC/H/57/11

In the matter between:-

ZIMBABWE OPEN UNIVERSITY 			Appellant

And

GIDEON MAGARAMOMBE				Respondent

Before Honourable G Mhuri, Senior President

E. Makamure, President

For Appellant:  Mr K. Maguchu (Legal Practitioner)

Respondent   -  In Person

MHURI G. (S.P.)

On the 10th November 2011 an issue was raised as to whether the grounds of appeal were proper grounds in line with the Supreme Court cases of:

SABLE CHEMICALS INDUSTRIES LIMITED VS DAVID PETER EASTER BOOK SC 18/10 (SABLE CHEMICALS)

And

NORMAN MUTSUTA, TONDERAI KATSANDE VS CAGAR (PRIVATE) LIMITED SC 47/09 (CAGAR)

In a nutshell the issue was do the grounds of appeal raise a question of law for the appeal to be properly before this Court?.

Appellant is appealing against an arbitral award. It is trite that such appeals lie to this Court on points of law alone.

Section 98(10) of the Labour Act [CAP 28:01] reads:-

“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.”

Appellant’s grounds of appeal as stated in the Notice of Appeal are as follows:-

That the Arbitrator erred –

ground 1 was withdrawn

grossly both at law and on the facts in holding generally that the Respondent was entitled to revert to the position of Senior Lecturer at the expiry of fixed term contract of Executive Dean

grossly on the facts in holding that it was best practice that Respondent should revert and in any event that best practice suffices as an obligation for Appellant to take back the Respondent as a Senior Lecturer

grossly at law in failing to take note of nor consider the facts applicable where an implied term is alleged

grossly on the facts in finding that Messrs Ndudzo & Nyatanga had reverted to their old positions with the Appellant in circumstances similar to Respondents.

In a nutshell Respondent’s submissions were that the Appellant’s grounds of appeal do not meet the requirements laid down in the Cagar case supra. He submitted that it is not sufficient that reference is made in the grounds of appeal to a sprinkling of phrases such as “At Law”, “Grossly both at law and on the facts”, “Grossly on the facts and Grossly at law.”

It was his submission that the ground must demonstrate in what respect the issue at stake is a question of law. Appellant merely made bald assertions but failed to demonstrate the basis upon which the grounds should be regarded as raising questions of law. Respondent argued that [in other words,] the Appellant’s grounds of appeal are incomplete as they fail to disclose the basis upon which they should be regarded as raising questions of law.

Appellant’s main submission as per paragraph 9 of its supplementary submissions is that all that is required in a Notice of Appeal is to allege the gross nature of the incorrectness of the lower’s Court’s findings. If such an allegation is made the requirement that an appeal is on a point of law would have been met.

It is trite that a gross misdirection on the facts can amount to a point of law.

“The position is also settled that a serious misdirection on the facts amounts to a misdirection law as the giving of reasons that are bad at law constitutes a failure to hear and determine according to law, for an Appellant to avail himself of misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection.” per Garwe J.A. in the case of SABLE CHEMICALS INDUSTRIES LIMITED supra.

In casu, Appellant’s grounds of appeal are against the Arbitrator’s factual findings. In its grounds Appellant has averred that the Arbitrator erred grossly on the facts, both facts and law etc. Does the mere use of the word grossly in Appellant’s grounds qualify them to be grounds on points of law. In the case of:

RESERVE BANK OF ZIMBABWE

VS

CORRINE GRANGER and

MARTHA MATARUKA  SC 34/2001

which was cited with approval by Sandura J.A. in the Cagar case supra, Muchechetere J.A. (as he then was) had this to say:

“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person applying his mind to the facts would have arrived at such a decision ………”

In the case of :

FLORENCE CHINYANGE

VS

JAGGERS WHOLESALERS SC 24/04

Gwaunza J.A. had this to say when she was dealing with the issue of a question of law in appeals from the Labour Court to the Supreme Court.

“The Appellant must in other words not only allege but also show that the Labour Court misdirected itself on a point of law.”

As alluded to earlier, the Arbitrator made factual findings and Appellant’s grounds are attacking these findings.

In order for these grounds to fall under the ambit of Section 98(10) of the Labour Act [CAP 28:01] it has averred that the Arbitrator erred grossly. We find that this was not enough. Appellant ought to have alleged and shown that there was gross misdirection on the facts as to amount to a misdirection on the law. Appellant did not comply with the principle as set out in the Cagar case. It   did exactly what was condemned by Garwe J.A. in the Sable Chemicals case, namely to clothe the ground with the words “on a point of law” when the ground is not a point of law.

Further if one looks at the process leading to Respondent’s appointment to Dean, i.e. all communication, the appointment was premised on the understanding that there was continuity even after deanship. This is what the Arbitrator made factual findings on, which findings in our view are not unreasonable considering the evidence placed before him.

It is our view that these factual findings cannot in the circumstances be impugned.

Accordingly as the grounds of appeal do not raise any point of law, the appeal is not properly before this Court and is therefore struck off. (Dismissed with costs).

Dube, Manikai and Hwacha – Appellant’s Legal Practitioners

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G. Mhuri

SENIOR PRESIDENT

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E. Makamure

PRESIDENT