SHECKEM     BARRISTER     NGAZIMBI    

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MUROWA     DIAMONDS     (PVT)      LTD

SUPREME COURT OF ZIMBABWE

MALABA DCJ, ZIYAMBI JA & OMERJEE AJA

HARARE, FERUARY 14, 2012 & JUNE 24, 2013

H Zhou, for the appellant

T Mpofu, for the respondent

MALABA DCJ: This is an appeal against the judgment of the Labour Court upholding the decision of the appeals officer to dismiss the appellant from employment with the respondent.  At the beginning of the hearing, Mr Mpofu who appears for the respondent raised two points in limine.  Firstly, he argued that the notice of appeal against the judgment delivered on 21 February 2011 does not comply with the provisions of s 92F of the Labour Act [Cap. 28:11] (“the Act”) and is therefore a nullity.  The notice of appeal was filed by the appellant on 9 March 2011.  Leave to appeal to the Supreme Court was granted by the Labour Court on 2 June 2011.  The second point taken was that the grounds of appeal do not raise questions of law as required by s 92F of the Act.  The preliminary points were contested by Mr Zhou on behalf of the appellant.

                    Section 92F of the Labour Act [Cap. 28:01] provides that:

“1. An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

 2.     Any party 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 leave to appeal that decision.

 3.     If the President refused leave to appeal in terms of subsection (2), the party may seek leave from the judge of the Supreme Court to Appeal.”

On 21 February 2011 the Labour Court gave a judgment against which the appellant sought to institute an appeal on 9 Marcy 2011.  Rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 (“the Rules) provides that an appeal against a decision of the Labour Court shall be instituted within fifteen days of the decision being given.  The notice of appeal must be delivered to all interested parties and filed with the registrar of the Supreme Court within fifteen days of the decision appealed against being given.

The Notice of Appeal delivered and filed by the appellant was filed before leave to appeal was granted.  Leave to appeal was granted by the Labour Court on 2 June 2011.  The respondent’s heads of argument drew the attention of the appellant’s legal practitioner to the fact that the purported notice of appeal did not comply with s 92F (2) of the Act and therefore a nullity.