Iris Biscuits (Private) Limited v Trust Mudimu & 2 Others

The respondents (employees) were dismissed from employment by the appellant (Iris Biscuits). An arbitral award confirmed their dismissal. The respondents appealed to the Labour Court, which upheld their appeal on two bases: (1) that the order given by the appellant to work overtime was unlawful, and (2) that the instruction was not clear and unambiguous. A final warning had been issued to the respondents in 2008. The bone of contention before both the arbitrator and the Labour Court had been the validity of the 2008 final warning and its effect on the penalty, not the lawfulness or clarity of the overtime instruction. During the Labour Court hearing, the union representative attempted to address the court on the circumstances surrounding the respondents' decision to leave the workplace despite the overtime request, but the court a quo did not invite either party to make further submissions on that aspect.

• Whether a court can dispose of a matter on issues that were neither raised nor argued before it
• Whether the Labour Court erred in upholding the appeal on grounds not raised or argued before the arbitrator or the Labour Court
• Whether the instruction to work overtime was lawful

The appeal succeeded with costs. The judgment of the Labour Court was set aside and replaced with an order that "The appeal is dismissed."

A court cannot dispose of a matter on a basis neither raised nor argued by the parties. This is a settled principle of law. Where issues have not arisen before lower courts and have not been argued, they cannot provide a basis upon which an appellate court can dispose of the matter.

The Supreme Court observed that the instruction given to the respondents to work overtime was, in its view, a lawful one. This observation was made after determining that the matter should be decided on procedural grounds, and therefore constitutes obiter dicta as it was not necessary for the determination of the appeal on the procedural point.

This case reinforces an important procedural principle in South African and Zimbabwean law that courts cannot decide cases on grounds that were neither raised nor argued by the parties. This upholds the principles of natural justice and procedural fairness, ensuring that parties have the opportunity to address all issues that may determine the outcome of their case. The case is particularly significant in the labour law context, confirming that appellate courts must confine themselves to issues properly raised and argued before lower tribunals.