Zimbabwe Open University v Perpetual Joy Ndekwere

The respondent was employed by the appellant as finance director on a fixed three-year contract from 8 June 2009 to 7 June 2012. On 27 March 2012, the Human Resources Committee and two days later the Special Executive Committee of Council unanimously recommended renewal of her contract for a further three years, subject to Council and Ministerial approval. On 7 June 2012, when her contract expired, she was appointed to act as finance director "until further notice." She continued in this capacity until 27 June 2013 when she received notice of termination effective 30 September 2013, advising that the council would make a substantive appointment. The respondent filed a complaint of unfair dismissal. The arbitrator found she had a legitimate expectation of re-engagement based on the recommendations and her acting appointment, and found her dismissal unfair. The appellant appealed to the Labour Court, which upheld a preliminary point that the appeal improperly raised questions of fact rather than law and dismissed the appeal with costs.

• What is the correct approach for determining whether a ground of appeal raises an issue of law versus a question of fact?
• Whether the grounds of appeal before the Labour Court raised questions of law or merely attacked factual findings?
• Whether a court that finds all grounds of appeal are invalid should dismiss the appeal or strike it off the roll?
• Whether an employee can have a legitimate expectation of contract renewal based on committee recommendations subject to further approval?

The appeal succeeded in part with costs. The judgment of the Labour Court was set aside. The preliminary point raised by the respondent was dismissed save in respect of ground 4. The matter was remitted to the Labour Court for determination on the merits.

When determining whether a ground of appeal raises an issue of law, a court must confine itself to the wording of the ground of appeal only and not have recourse to the merits of the matter. A ground of appeal attacking findings of fact must not only allege that the lower court misdirected itself but must also show how that misdirection came about and demonstrate irrationality. Merely alleging misdirection without substantiation remains an attack on factual findings and does not raise a question of law. Where a court determines that there are no valid grounds of appeal before it (i.e., no proper appeal exists), the appropriate remedy is to strike the matter off the roll, not to dismiss the appeal, as striking off preserves the appellant's right to apply for condonation and extension of time.

The Court noted that the Labour Court Rules 2017, in LC 4, now require grounds of appeal to be clear and concise, similar to appeals from the High Court, though this was not a requirement at the time the appeal was argued before the Labour Court. The Court observed that to the extent the decision in Sable Chemical Industries Ltd v David Peter Eastenbrook SC 18/10 may have created an impression that courts can have regard to merits in determining validity of grounds of appeal, it does not reflect the correct approach and should not be followed in that respect. The Court emphasized that substance should be favored over form when assessing grounds of appeal, citing Zvokusekwa v Bikita Rural District Council SC 44/15. The Court also noted in passing that the substantive issue of legitimate expectation of contract renewal would need to be determined on remittal.

This case is significant in Zimbabwean labour and appellate law for definitively clarifying the test for determining whether grounds of appeal raise questions of law versus questions of fact. It establishes that courts must assess validity of grounds based solely on their wording and allegations, not on the merits of the case. It requires that grounds attacking factual findings must articulate how the misdirection arose and demonstrate irrationality, not merely allege error. The judgment also establishes the important procedural distinction that where no valid grounds of appeal exist, the matter should be struck off rather than dismissed, preserving the appellant's ability to seek condonation. The case has broad application to all appeals from labour arbitrations and clarifies the boundaries of appellate review in the labour law context.