Judgment No. SC 64/04
Civil Appeal No. 111/02
SHADRECK
HLAHLA v O.K. ZIMBABWE
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
ZIYAMBI JA & GWAUNZA JA
HARARE,
JUNE 7 & SEPTEMBER 6, 2004
The
appellant in person
M
Gwaunza, for the
respondent
ZIYAMBI JA: This is an appeal
from the Labour Relations Tribunal (the Tribunal), now the
Labour Court.
The appellant was dismissed from
his employment with the respondent after a hearing conducted in terms
of the respondents Code
of Conduct. It was alleged that the
appellant, who was at the time a till operator assisting in the cash
office, received a bag
containing money which had already been
counted and verified correct by the appellants branch manager, one
Mr Chikaonda.
The appellant opened the bag and, according to
his evidence, found the money therein contained to be short by
$5 000. Without
consulting management or the persons who had
counted the money, the appellant altered the figures on the cash
count to match the
amount of money which the appellant alleged he
had. He then adjusted the sundry debtors by increasing the figure
from $1 000
to $6 000. The respondent was prejudiced in
the sum of $5 000, which was not recovered.
The appellant was found guilty of
theft by the disciplinary committee of the respondent and, needless
to say, all appeals to the
domestic tribunals in terms of the Code
of Conduct failed. Dissatisfied, the appellant noted an appeal to
the Tribunal.
The Tribunal upheld the
determination of the appeals committee of the respondent and, in
dismissing the appeal, said:
Had the appellant found
himself with less money than that stated in the cash count, it was
his duty to verify with the two persons
who had signed the cash count
and physically counted the money. He could even have raised it with
the Manager.
His
failure to query and his decision to alter are so unreasonable an
action for a person working in a cash office, that it can only
be
explained on the basis of someone who had actually stolen the money.
The
grounds of appeal, four in number, are as follows:
1. I
being a
trainee I work under instructions from the supervisor who is in turn
answerable to the manager so (there) was no way in which I could
go
to the manager.
2. As
soon as I noticed that something was not going well, I reported to
the manager who in turn made the auditor to come for an audit.
3. In the judgment the Honourable
Hove states that the bag was locked, which is wrong.
4. The Honourable Hove did not
take into account that I counted the money in the presence of my
supervisor in his office not in the
managers office.
In terms of s 92(2) of the
Labour Relations Act [Chapter 28:01]
(the Act), appeals from the Tribunal lay to this Court only on
a point of law. Section 92(2) has now been repealed by the
Labour
Relations Amendment Act, No 17 of 2002, but the effect of the
new s 92D of the Act is the same. Appeals now lie
on a
question of law to the Supreme Court against any decision of the
Labour Court.
What constitutes a question of
law was discussed by this Court in Muzuva
v United Bottlers (Pvt) Ltd
1994 (1) ZLR 217 (S) at 220 D-G:
the
term question of law is used in three distinct though related
senses. First, it means a question which the law itself
has
authoritatively answered to the exclusion of the right 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. Second, it
means a question as to what the law is. Thus,
an appeal on a
question of law means an appeal in which the question for argument
and determination is what the true rule of law
is on a certain
matter. And third, any question which is within the province of
the judge instead of the jury is called a question
of law. This
division of judicial function arises in this country in a criminal
trial presided over by a judge and assessors.
I respectfully adopt this
classification, although the third sense is of no relevance to a
matter such as this.
The appellant, who appeared in
person, could not point us to any point of law raised in the Notice
of Appeal which would endow us
with jurisdiction to entertain this
appeal.
None of the grounds of appeal
stated above raise a question of law and, in our view, no question of
law arises from the determination
of the appeal by the Tribunal. We
accordingly have no jurisdiction to entertain this appeal and it is
therefore struck off the
roll with costs.
SANDURA JA:
I agree.
GWAUNZA
JA: I agree.
Wintertons,
respondent's legal practitioners
