Judgment No. SC 112/04
Appeal No. 36/03
AFRICAN BUILDING AND CONSTRUCTION (PRIVATE)
TAPERA RANGISO AND NINETEEN OTHERS
COURT OF ZIMBABWE
CJ, SANDURA JA & ZIYAMBI JA
NOVEMBER 16, 2004
Fitches, for the appellant
respondents in person
SANDURA JA: In this matter, which was an appeal against a
judgment of the Labour Relations Tribunal (the Tribunal) (now
the Labour Court), we struck the appeal off the roll with costs,
after hearing counsel for the appellant company (the company)
and one of the respondents who spoke for all the respondents. We
indicated that the reasons for that decision would be given in
course. I now set them out.
factual background was as follows. On 3 October 2000 the
respondents, who were employees of the company, were given a
notice of termination of their contracts of employment. Because
they believed that the termination of their employment
complied with the Labour Relations (Retrenchment) Regulations, 1990,
published in Statutory Instrument 404 of 1990 (the
as amended, they took their grievance to a labour relations officer.
determination, the labour relations officer ruled that the company
should have complied with the provisions of the Regulations.
Consequently, she set aside the notices of termination of employment
and ordered that all the respondents be reinstated.
the labour relations officer, acting upon the companys request,
referred the matter to a senior labour relations
officer. The issue
between the parties was whether the respondents contracts of
employment were open-ended as opposed to being
of fixed duration.
The senior labour relations officer answered that question in the
affirmative, and concluded that before terminating
the contracts of
employment the company should have complied with the Regulations.
Accordingly, the decision of the labour relations
company then appealed to the Tribunal, but the appeal was dismissed
with costs. Aggrieved by that decision, the company appealed
companys argument on appeal was that the contracts of employment
in question were not open-ended but were of fixed duration.
it was common cause that if the contracts were of fixed duration the
Regulations were irrelevant, the respondents maintained
contracts were open-ended.
question which arose for determination by this Court was whether the
appeal raised any question of law. If it did not, then
in terms of
s 92(2) of the Labour Relations Act [Chapter 28:01]
(now s 92D of the Labour Act [Chapter 28:01]) this
Court had no jurisdiction to entertain the appeal.
question of law was considered by this Court in Muzuva v
United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220 D-F
GUBBAY CJ had this to say:
The twin concepts, questions of law and questions of fact, were
considered in depth by E.M. GROSSKOPF JA
Media Workers Association of South Africa and 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
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
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
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
respectfully adopt this classification, although the third sense is
of no relevance to a matter such as this.
case, the learned CHIEF JUSTICE was dealing with a
submission made by counsel that the appeal from the Tribunal,
was before him, did not raise any question of law.
present case, bearing in mind the meanings of the term question of
law set out in the Muzuva case supra, we were
satisfied that the issue raised on appeal, i.e. whether the contracts
of employment were open-ended or of fixed duration,
was not a
question of law but one of fact.
circumstances, this Court had no jurisdiction to hear the appeal and
the matter was, accordingly, struck off the roll with
CJ: I agree.
JA: I agree.
& Holderness, appellant's legal practitioners