Section 92F(1) of the Labour Act (Chapter 28:01) provides that: “An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.”
But what is a question of law? A question of law is best understood by comparing it to a question of fact.
In law, a question of fact is a question which must be answered by reference to facts and evidence surrounding a particular case.
All questions of fact are capable of proof or disproof, by reference to a certain standard of proof.
Depending on the nature of the matter, the standard of proof may require that a fact be proven on a balance of probabilities (as in labour/civil cases) or beyond reasonable doubt (as in criminal cases).
A question of fact requires an interpretation of conflicting views on the factual circumstances surrounding the case at hand, that is, what actually has happened or existed. In simple terms, questions of fact essentially answer the question, “What happened?”
In a labour dispute, it is left up to the arbitrator or president of the Labour Court to decide which testimony they want to accept as “fact”. Questions of fact can be resolved without reference to a legal standard.
By contrast, a question of law involves the application or interpretation of legal principles or statutes.
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Questions of law are decided by a judge, who weighs the available information, considers his or her knowledge of the law, and issues a ruling on the matter.
When a judge makes a decision on a question of law, he or she issues a formal written opinion.
This is critically important when the judge is making a decision which may be controversial, or is interpreting a law in a new way.
This written opinion on a question of law can be referenced by other judges when they make determinations on other matters of law.
Sometimes a question of law depends heavily on the discretion of the judge and another judge may rule that the first judge was actually incorrect.
Questions of law can be raised by either party in a dispute and they require legal expertise to answer.
Perhaps the best interpretation of what a question of law is what was considered by the Supreme Court in Muzuva vs United Bottlers (Pvt) Ltd (1994).
In this case, Chief Justice Gubbay (as he then was) quoted from a 1992 South African case:
“. . . the term ‘question of law’ is used in three distinct though related senses. Firstly, it means ‘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 it considered to be the truth and justice of the matter’.
“Secondly, it means ‘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 determination is what the true rule of law is on a certain matter’.
“Thirdly, any question which is within the province of the judge instead of the jury is called a question of law”.
The dividing line between questions of fact and questions of law is not always clear to an ordinary person. Sometimes what appears to be a question of law turns out to be a question of fact, or vice versa.
To make the distinction clearer, let me quote further from two foreign cases. In Canada vs Southam (1997), Justice Iacobucci wrote:
“Questions of law are questions about what the correct legal test is. Questions of fact are questions about what actually took place between the parties.”
In New Rural Bank of Guimba (NE) Inc vs Fermina S Abad and Rafael Susan, (2008), the court said:
“We reiterate the distinction between a question of law and a question of fact. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts . . . A question of fact exists when a doubt or difference arises as to the truth or falsehood of facts . . . .”
In the interests of finality of litigation, no appeal is allowed beyond compulsory arbitration or Labour Court on questions of fact.
When one appeals to the Supreme Court (or Labour Court in the case of arbitral awards), it is most often questions of law which are dealt with in the appeal, unless there were serious flaws with the way the facts were presented at the initial hearing or critical information was missing.
In other words, a gross misdirection on facts can raise questions of law.
When an appeal is lodged with the Supreme Court, the first issue for consideration is whether the appeal raises any question of law.
If it does not, then in terms of the Labour Act, the Supreme Court will have no jurisdiction to entertain the appeal.
For instance, the Supreme Court declined to hear the appeal in the case of Central African Building and Construction vs Tapera Rangiso and 19 Others (Case No SC 112/04) and that of Joseph Dondo vs National Breweries (Case No SC 69/05) on the basis that the appeals were based on questions of fact as opposed to questions of law.
In both cases, the Supreme Court referred to judgment in the Muzuva case.
Taking a labour dispute on appeal to the Supreme Court can be risky.
Appeals will not be granted lightly. If your case is dismissed on the basis that it does not raise a question of law, the court usually orders you to pay the costs of the appeal.
