MUZUVA v UNITED BOTTLERS (PVT) LTD
1994 (1) ZLR 217 (S)
Division:
Supreme Court, Harare
Judges:
Gubbay CJ, McNally JA & Muchechetere JA
Subject Area: Civil appeal
Date: 21 & 28 February 1994
Appeal — grounds — point of law — meaning
Employment — appeals under Labour Relations Act and Regulations — appeal from
Labour Relations Tribunal — lies on point of law only
An appeal from the Labour Relations Tribunal now lies to the Supreme Court on points
of law only. The court has no jurisdiction to entertain an appeal on factual grounds. This
also applies to any appeal which was “pending” before the Labour Relations Tribunal on
the date on which s 108(2) of the Labour Relations Act was amended by Act 12 of 1992.
Any appeal to the Tribunal could be said to be pending if, immediately before the
amendment came into effect on 1 January 1993, the appeal had been noted yet awaited
the Tribunal’s determination. If, on the other hand, the Tribunal had decided the matter
before 1 January 1993 and an appeal had after that date been noted to the Supreme Court,
the appellant would not be restricted to raising questions of law.
The phrase “question of law” has three distinct, though related, meanings:
(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. An appeal on a question of law means one in
which the question for argument and determination is what the true rule of law is on a
certain matter;
(c)
a question which is within the province of the judge instead of the jury.
Page 218 of 1994 (1) ZLR 217 (S)
Cases cited:
King v King 1971 (2) SA 630 (O)
Noah v Union National South British Ins Co Ltd 1979 (1) SA 330 (T)
National Bank of New Zealand Ltd v Chapman [1975] 1 NZLR 480
Media Workers’ Assn of SA & Ors v Press Corp of SA Ltd (“Perskor”) 1992 (4) SA 791
(A)
Appellant in person
R Y Phillips for the respondent
GUBBAY CJ: On 25 June 1992, the Labour Relations Tribunal (“the Tribunal”) heard an
appeal against the determination of the Labour Relations Board (“the Board”) which had
ordered the reinstatement of the appellant (“the employee”) to the employment of the
respondent (“the employer”), with immediate effect, his salary and benefits to be paid
from 20 January 1989.
In an undated judgment, reflected in correspondence as having been delivered either in
late February or early March 1993, the Tribunal allowed the appeal and set aside the
determination of the Board.
The Tribunal considered two related issues. The first was whether grounds existed for the
termination of the employee’s contract of employment. The second was whether the
employee had agreed in writing to such termination or had been coerced by the employer
to submit his resignation. It held against the employee on both issues, finding, on the
evidence, that he had confessed to converting to his own use monies for which he was
responsible and that, in consequence of such misconduct, the employer had offered him
the choice of resigning from employment or having the allegation of theft reported to the
police. The employee had opted to resign and, on 20 January 1989, duly signed a letter to
the effect that he was resigning for personal reasons. In the words of the chairman:
“We are satisfied that, having failed to give a satisfactory explanation about the missing
cheque and about the shortfall of cash and being faced with the prospect of going to
prison, the (employee) decided to take advantage of the offer to resign. In the
circumstances, we are of the opinion that the employee’s assertion of having been forced
to resign and attempt to withdraw his resignation are futile afterthoughts amounting to
bolting the stable after the horse has already gone out.”
Page 219 of 1994 (1) ZLR 217 (S)
Aggrieved by the outcome of the proceedings, the employee, on 26 March 1993, noted an
appeal to this court. The grounds of appeal, in substance, challenged the correctness of
the findings that the employee had confessed to misappropriating the monies and that he
had not been coerced into tendering his resignation in writing.
Mr Phillips, who appeared for the employer, took the point in limine that an appeal to this
court from a determination of the Tribunal only lies on a question of law and that, as the
present appeal was brought on pure issues of fact, it should be struck out.
The Labour Relations Amendment Act 12 of 1992, which took effect on 1 January 1993,
amended s 108(2) of the Labour Relations Act 1985, by the insertion of the words “on a
question of law” after the word “appeal”, the section now reading:
“An appeal on a question of law from any decision of the Tribunal shall lie to the
Supreme Court” (emphasis added).
Section 30 of the amending Act contains transitional provisions that mainly concern the
Board. Subsection (5), however, refers to the Tribunal and is in the following terms:
“The provisions of the principal Act as amended by this Act shall apply to any appeal
pending before the Labour Relations Tribunal immediately before the date of
commencement of this Act.”
Plainly, a right of appeal to the Supreme Court will be confined to a question of law if
immediately before 1 January 1993 an appeal was pending before the Tribunal.
Black’s Law Dictionary (1983) Abridged 5 ed at p 390 defines the word “pending” as —
“Begun, but not yet completed; before the conclusion of; prior to the completion of;
unsettled; undetermined; . . . an action or suit is ‘pending’ from its inception until the
rendition of final judgment.”
Stroud’s Judicial Dictionary 5 ed, vol 4, at p 1890 sv (1) is to the same effect.
This is certainly the ordinary meaning of the word when used with reference to legal
proceedings. Thus in King v King 1971 (2) SA 630 (O) it was held
Page 220 of 1994 (1) ZLR 217 (S)
that the phrase “pending action” in rule 33(4) of the South African Rules of Court means
any action in which the issues between the parties have not yet been finally decided or
disposed of (at 634 G–H). See also, Noah v Union National South British Insurance Co
Ltd 1979 (1) SA 330 (T) at 333 C–D; A v B [1969] NZLR 534 at 535 and National Bank
of New Zealand Ltd v Chapman [1975] 1 NZLR 480 at 482, both cited in Words and
Phrases Legally Defined, Supp, sv “pending”.
In the context of s 30(5), I am unable to perceive of any reason why the words “any
appeal pending” should bear a meaning different from that alluded to. In my view, an
appeal is pending before the Tribunal if, immediately before 1 January 1993, it had been
noted yet awaited the Tribunal’s determination. But if the Tribunal had given judgment
upon an appeal heard by it prior to 1 January 1993 and a further appeal to the Supreme
Court had been noted after such date, I do not think that the appellant would be caught by
s 30(5) and restricted, as the present employee is, to raising questions of law.
The twin concepts, questions of law and questions of fact, were considered in depth by E
M Grosskopf JA in Media Workers’ Association of South Africa &Ors v Press
Corporation of South Africa Ltd (“Perskor”) 1992 (4) SA 791 (A). Approving the
discussion of the topic in Salmond on Jurisprudence 12 ed at 65–75, the learned Judge of
appeal pointed out at 795 D-G that 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 determination by the Tribunal that the employee had voluntarily submitted a letter of
resignation which the employer had acceded to, was based upon its factual findings. It
accepted the employer’s version that the employee had admitted to having
misappropriated the monies and that he had been given the option to resign without
recourse to prosecution. It rejected the employee’s
Page 221 of 1994 (1) ZLR 217 (S)
claim that he had made no such confession and had been subjected to duress in signing
the letter of resignation. In the premises, the Tribunal found as a fact that the employee’s
contract of employment had been terminated by mutual agreement in compliance with s
2(1)(b) of the Labour Relations (General Conditions of Employment) (Termination of
Employment) Regulations 1985.
In my opinion, no question of law arises from the determination of the appeal by the
Tribunal in either the first or second sense referred to above.
It follows that this court has no jurisdiction to entertain this appeal and it is to be struck
off the roll. In accordance with Mr Phillips’ indication as to the attitude of the employer,
there will be no order as to costs.
McNally JA: I agree.
Muchechetere JA: I agree.
Scanlen & Holderness, respondent’s legal practitioners