REPORTABLE (29)

Judgment No. SC 36/03

Civil Appeal No. 309/99

DUNMORE MATYUKIRA v OK ZIMBABWE

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & GWAUNZA JA

HARARE, OCTOBER 13 & NOVEMBER 18, 2003

The appellant in person

M Gwaunza, for the respondent

CHEDA JA: The appellant was employed by the respondent as an assistant storeman. On 1 September 1995 he was asked to assist in operating one of the tills in the shop. He proceeded to do so. According to his version, after serving about four customers he noticed that the till slip came out crumbled and that there was no audit slip. He informed one of his superiors, who advised him to stop. He was later charged with misconduct according to the employees’ Code of Conduct. He was found guilty and dismissed from employment.

He appealed to the Industrial Relations Manager and the Appeals Committee without success.

The appellant then appealed to the Labour Relations Tribunal (“the Tribunal”), but his appeal was dismissed.

He has now appealed to this Court on the same matter. His grounds of appeal are as follows –

1. Transgression of the disciplinary code, category 2 section 10, by considering an invalid warning;

2. Unfair handling of the case; and

3. Discarded vital mitigating factors.

The appellant, being a self-actor, did not file any heads of argument.

However, the respondent filed its heads of argument and raised a point in limine, submitting that there was no appeal before the Court because the appeal was not one on a point of law.

Ms Gwaunza, for the respondent, submitted that s 92(2) of the Labour Relations Act [Chapter 28:01] (“the Act”) requires that only an appeal on a question of law from any decision of the Tribunal shall lie to this Court. She submitted that the present appeal should be struck out or dismissed with costs.

In reply to this, all that the appellant could say was that the submission by the respondent was irrelevant and his appeal was based on a point of law according to the Code of Conduct as the warning was not final but severe only. He pointed out that according to the Code of Conduct, p 4 para 4.1.2, (a) the first recorded warning remains effective for four months; (b) a severe warning remains effective for six months; and (c) a final warning remains effective for twelve months.

The issue about appealing on a point of law was dealt with in the cases cited by Ms Gwaunza for the respondent and, in particular, in the following cases –

(1) Mazuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) at 219-220; and

(2) Kukwenge v Clan Transport Co (Pvt) Ltd 2001 (1) ZLR 199 (S).

In Muzuva’s case supra GUBBAY  CJ dealt with the issue and described “a question of law” as –

(a) 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;

(b) 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;

(c) any question which is within the province of the judge instead of the jury is called a question of law.

MUCHECHETERE  JA followed the same approach in the case of Kukwenge v Clan Transport Co supra.

In the present case, the Tribunal made the following findings –

The appellant appealed not against conviction but against the penalty imposed. This is not disputed by the appellant.

According to s 10 of the Disciplinary Code, Category 2, dismissal for a first offence was appropriate where there were aggravating circumstances and no mitigating factors.

There were aggravating circumstances. The appellant had previously been given a severe warning for a similar contravention of the Code of Conduct.

The appellant was asked how much time he needed to get himself ready for that duty at the till. He said he needed six minutes. When asked how much time he needed to check if there was an audit roll in place he said it takes two seconds. It was also established that he had previously operated a till in February, April and May of that year and had even attended refresher courses on till operation in January of the same year. He later admitted during the disciplinary hearing that he knew all the till operating procedures and recited them correctly.

With this background the Tribunal found that there were aggravating factors and no mitigating factors.

The above are findings of fact. They do not raise any question of law. The findings do not fit into the criteria referred to by GUBBAY  CJ in Muzuva’s case supra.

The appellant himself made no submissions which raise a point of law. Accordingly the appeal is not properly before this Court as it is not based on any point of law.

The appeal is struck off with costs.

SANDURA  JA: I agree.

GWAUNZA JA: I agree.

Wintertons, respondent's legal practitioners