Appeal No. 309/99
MATYUKIRA v OK ZIMBABWE
COURT OF ZIMBABWE
CHEDA JA & GWAUNZA JA
OCTOBER 13 & NOVEMBER 18, 2003
appellant in person
for the respondent
The appellant was employed by the respondent as an assistant
storeman. On 1 September 1995 he was asked to assist
operating one of the tills in the shop. He proceeded to do so.
According to his version, after serving about four customers
noticed that the till slip came out crumbled and that there was no
audit slip. He informed one of his superiors, who advised
stop. He was later charged with misconduct according to the
employees Code of Conduct. He was found guilty and dismissed
appealed to the Industrial Relations Manager and the Appeals
Committee without success.
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
of the disciplinary code, category 2 section 10, by
considering an invalid warning;
handling of the case; and
vital mitigating factors.
being a self-actor, did not file any heads of argument.
respondent filed its heads of argument and raised a point in
submitting that there was no appeal before the Court because the
appeal was not one on a point of law.
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
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
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
v United Bottlers (Pvt) Ltd
1994 (1) ZLR 217 (S) at 219-220; and
v Clan Transport Co (Pvt) Ltd
2001 (1) ZLR 199 (S).
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
(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
what the true rule of law is on a certain matter;
question which is within the province of the judge instead of the
jury is called a question of law.
followed the same approach in the case of Kukwenge
v Clan Transport Co supra.
present case, the Tribunal made the following findings
appellant appealed not against conviction but against the penalty
imposed. This is not disputed by the appellant.
s 10 of the Disciplinary Code, Category 2, dismissal for a
first offence was appropriate where there were aggravating
circumstances and no mitigating factors.
aggravating circumstances. The appellant had previously been given
a severe warning for a similar contravention of the
Code of Conduct.
appellant was asked how much time he needed to get himself ready for
that duty at the till. He said he needed six minutes.
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
of the same year. He later admitted during the disciplinary hearing
that he knew all the till operating procedures and
background the Tribunal found that there were aggravating factors and
no mitigating factors.
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
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.
is struck off with costs.
respondent's legal practitioners