DISTRIBUTABLE (57)
Judgment No. SC 24/07
Civil Appeal No. 252/06
ZIMBABWE
BROADCASTING HOLDINGS (PVT) LTD
v
FRANCIS
MAMVURA
SUPREME
COURT OF ZIMBABWE
HARARE,
JUNE 22, SEPTEMBER 19, 2007
& MAY
30, 2008
M V Chizoda-Chineunye, for the applicant
G V
Mamvura, for the respondent
Application
for leave to appeal to the Supreme Court
Before GARWE JA: In Chambers, in terms of s 92F(3) of the
Labour Act [Cap. 28:01].
The background to this application is largely common cause. The
respondent was employed as head of Finance and Administration
by the
applicant. Following a disciplinary hearing he was dismissed from
employment for acts of misconduct in terms of the provisions
of the
Labour Relations (General Conditions of Employment)(Termination of
Employment) Regulations SI 130/03. The matter was
thereafter
referred to an arbitrator who found in favour of the respondent and
consequently ordered his re-instatement without
loss of pay or other
benefits or alternatively the payment by the applicant of damages in
lieu of reinstatement. The applicant, aggrieved at the
decision, appealed to the Labour Court. At the hearing before the
Labour Court
the only issue for determination was whether one
Chikondo, who was a member of the board of directors had the mandate
to suspend
the respondent. After due consideration of the matter,
the Labour Court found that although Chikondo was a member of the
board,
it was not clear what role he or the other board members
played in the day to day running of the applicant. The memorandum
which
specifically authorized the chairman of the disciplinary
committee to suspend the respondent did not specify who the chairman
of
that committee was. The memorandum in particular did not state
that Chikondo was the chairman of the authority. The Labour Court,
in its judgment, accepted that the applicant can delegate powers to
any of its employees to conduct disciplinary proceedings but
found
that, on the evidence before it, there was nothing to suggest that
Chikondo had the authority to suspend the respondent.
Accordingly
the Labour Court found the suspension of the respondent to be invalid
and confirmed the arbitrators award.
The applicant filed an appeal against this ruling on 12 September
2001. In the light of the provisions of s 92F(2) of the
Labour
Court [Cap. 28:01] which require that leave to appeal first be
obtained, the applicant applied for such leave before the President
of the Labour
Court who however refused such leave on the basis that
what the applicant sought to appeal against was essentially a
question of
fact not law which is not permissible in terms of
the Labour Act. The applicant now applies to a Judge of this Court
for
such leave.
In its submissions, the applicant argues that delegating a member
of the board, whether permissible or not, is itself a point
of law.
The applicant further submits that a wrong appreciation of facts can
lead to a wrong application of the law. In the instant
case since it
was the applicants position that it had delegated the necessary
authority to Chikondo, the President misdirected
herself in her
application of the law.
The respondent, on the other hand, opposes the relief sought on the
basis that what the applicant seeks to challenge is a finding
of fact
which cannot, in terms of s 92F of the Labour Act, form the
basis of an appeal from a decision of the Labour Court,
as such an
appeal must be confined to issues of law only.
The provisions of s 92F of the Labour Act are clear. A
party that is aggrieved at a decision or order of the Labour Court
may appeal to the Supreme
Court only on a question of law. The issue
that arises in the present application therefore is whether the
decision sought to
be appealed against is on a question of law.
That the applicants board of directors can delegate powers was
not in issue before the Labour Court. The question now raised
by the
applicant as to the powers of the board and the chairman to delegate
certain functions never arose. It was accepted such
powers existed.
In this regard, the Labour Court remarked as follows at p 9 of
its judgment:
While it is trite that the respondent can delegate powers, such
powers ought to be properly spelt out.
It is the applicants contention that Chikondo was empowered by
the board to suspend the respondent. That may have been so.
However, the record does not say so. In dealing with this aspect,
the Labour Court remarked:
The duties of the members of the Board of Directors were not spelt
out. It is therefore difficult to say that Chikondo as a
member of
the board of directors was clothed with the required authority to
enable him to suspend the respondent.
Further, the Labour Court found that Chikondos functions as a
member of the board of directors were never clarified. The letter
written by the chairman to the chairperson of the disciplinary
authority did not specify who the chairman of the disciplinary
committee was or who constituted the disciplinary authority. The
Labour Court noted a further difficulty. The letter suspending
the
respondent was signed by Chikondo whilst the letter advising of the
termination of employment was co-signed by a Mr Mapuranga
and one
Jarnie.
In the result, the Labour Court did not accept that as a question of
fact Chikondo had been given the requisite authority or that
the
chairman of the board had given the necessary authority to Chikondo
to suspend the respondent as the applicant now argues.
On the facts
before it, the Labour Court cannot be faulted for coming to the
conclusion it did and specifically for its decision
that the issue
that forms the basis of the appeal that the applicant wishes to
pursue involves a question of fact not law.
In the circumstances, this application must fail.
It is accordingly dismissed with costs.
Chizodza-Chinounye, applicants legal practitioners
Scanlen & Holderness, respondents legal practitioners
