Leopard Rock Hotel (Pvt) Ltd v Edward Chikosi and Justice Bridget T Chivizhe N.O

Edward Chikosi was employed by Leopard Rock Hotel as a front office manager and was dismissed on 7 February 2012 for fraud. He challenged the dismissal on the basis that a wrong Code of Conduct had been used. An arbitrator upheld his challenge and reinstated him. The Labour Court partially upheld the employer's appeal on 8 January 2016, setting aside the arbitral award and remitting the matter for a hearing under the correct Code. The Labour Court judgment contained a typographical error in the operative part stating suspension was "without pay" while the body of the judgment stated "with pay". On 15 January 2016, Chikosi brought this error to the judge's attention. On 23 February 2016, a hearing commenced under the correct Code and the applicant dismissed Chikosi. On 23 March 2016, the judge issued a corrective order amending the operative part to state suspension was "with pay". The applicant sought to appeal this decision but was out of time. On 22 September 2017, the same judge heard the application for condonation and leave to appeal. The judge dismissed the application on the basis that no draft notice of appeal was attached, which she found to be a defect despite it not being a specific requirement of the Labour Act or Rules. The applicant then brought this review application to the High Court.

• Whether the High Court has jurisdiction to review decisions of the Labour Court
• Whether the application for review was the proper procedure or whether the matter should have been appealed directly to the Supreme Court on a question of law
• Whether the grounds raised by the applicant constituted reviewable irregularities or errors of law appealable to the Supreme Court

The application for review was dismissed with costs on an ordinary scale.

The binding legal principles established are: (1) Following the 2017 Constitutional Amendment, the High Court has jurisdiction to review decisions of the Labour Court as the Labour Court is expressly declared to be subordinate to the High Court for purposes of section 171(1)(b); (2) Notwithstanding this review jurisdiction, where the grounds raised constitute errors of law rather than the specific grounds for review set out in section 27 of the High Court Act (absence of jurisdiction, bias, or gross irregularity), the proper remedy is an appeal to the Supreme Court under section 92F of the Labour Act which provides for appeals on questions of law only; (3) An application for review is not the proper procedure where the substantive complaints relate to alleged errors of law by the Labour Court.

The court made non-binding observations regarding the merits of the procedural irregularity ground, noting that it is not necessarily detrimental for a court not to deal with each and every submission raised by parties and to confine itself only to issues critical to its decision, particularly where the court is already familiar with the background and reasons for delay. The court also noted that if the applicant had wanted the condonation issue determined separately from the leave to appeal application, it should have lodged two distinct applications. The court further commented that the applicant was correct in seeing the questions arising from the 22 September 2017 hearing as legal ones, and placed responsibility on the legal practitioners for choosing the wrong procedure. The court declined to award costs on a higher scale, finding that the application was not frivolous and the applicant had not refused to see reason.

This case is significant in Zimbabwean jurisprudence (note: this is a Zimbabwean case, not South African) for clarifying the jurisdictional relationship between the High Court and the Labour Court following the 2017 Constitutional Amendment. It establishes that while the High Court has jurisdiction to review Labour Court decisions as a subordinate court pursuant to sections 171(1)(b) and 174 of the Constitution as amended, parties must still choose the appropriate remedy. Questions of law from the Labour Court should be appealed to the Supreme Court under section 92F of the Labour Act, while review applications should be reserved for matters falling within the grounds specified in section 27 of the High Court Act (absence of jurisdiction, bias, or gross irregularity). The case provides important guidance on distinguishing between reviewable irregularities and appealable errors of law in the labour law context.