On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.
It is opposed by the first respondent.
They seek the following relief:
1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.
2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.
3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.
4. Each party shall bear its own costs.
THE FACTS
The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.
The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).
The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.
The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.
The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.
The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.
The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.
The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.
The first applicant regards the termination to be a retrenchment process.
The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.
He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.
The two applicants were aggrieved by the entire retrenchment process.
They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.
He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.
Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.
He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.
He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.
Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:
(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.
(ii) The second was that it had a reservation arbitration clause.
Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.
The Labour Court confirmed the ruling on 19 May 2017.
It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.
It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.
Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.
The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.
The application for joinder was set down together with the appeal hearing.
At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.
The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.
A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.
Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.
On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.
In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.
She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.
This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.
It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.
However, at paragraphs [12] and [13] this Court, en passant, remarked that:
“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).
That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'
[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”
These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:
“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”
The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.
The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.
Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.
The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.
It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.
It was opposed by the first respondent on 20 April 2021.
The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021.
THE PRELIMINARY ISSUE
In her written heads of argument, and at the hearing, counsel for the first respondent raised the issue of prescription as a preliminary point.
The first respondent did not plead prescription in its opposing affidavit but raised it for the first time in its written heads of argument.
Counsel for the first respondent contended, that, prescription, being a question of law could be raised at any time in the proceedings.
She argued, that, the applicants right of appeal, and, by extension, the right to sue out the present application constituted a debt as defined in the Prescription Act [Chapter 8:11], which was susceptible to the vagaries of prescription in terms of section 15(d) of the Prescription Act.
It was common cause that the period between the date on which the applicants withdrew their appeal (22 February 2018) and the date on which they filed the present application (12 April 2021) was in excess of three (3) years.
Counsel for the applicants made the contrary contention, that, as the present application was governed by the provisions of Rule 61 as read with Rule 43 of the Supreme Court Rules, it could not be affected by prescription.
He argued, that, the applicants were not claiming the right to appeal in the same way that a litigant would sue for a debt. The right to appeal was in existence but had not been exercised at the stipulated time. The present application, so his argument went, was therefore governed by the requirements for condonation and extension of time within which to appeal and not by the Prescription Act.
The relevant provisions of the Prescription Act that fall to be considered in this application are section 2, 13(1), 15(a)(ii) and (d) and 20(2). They state the following:
“2 Interpretation
In this Act —
'debt' without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”
“13 Debts to which Part IV applies
(1) This Part shall, save in so far as it is inconsistent with any enactment which —
(a) Provides for a specified period within which —
(i) A claim is to be made; or
(ii) An action is to be instituted; in respect of a debt; or
(b) Imposes conditions on the institution of an action for the recovery of a debt;
apply to any debt arising on or after the 1st January 1976.”
“15 Periods of prescription of debts
The period of prescription of a debt shall be —
(a) Thirty years, in the case of —
(ii) A judgment debt;
(d) Except where any enactment provides otherwise, three years in the case of any other debt.”
“20 Prescription to be raised in pleadings
(2) A party to litigation who invokes prescription shall do so in the relevant documents filed of record in the proceedings:
Provided that a court may allow prescription to be raised at any stage of the proceedings.”
Rule 61 of the Supreme Court Rules prescribes as follows:
“61. Applications for extension of time to appeal
Save where it is expressly, or by necessary implication, prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”
Sections 13(1) and 15(d) of the Prescription Act subordinates the provisions and application of the Prescription Act to the provisions of any other enactment that specifically deals with this subject matter.
Section 15(d) of the Prescription Act, however, limits the period of prescription to three (3) years from the period that the debt becomes due.
The definition of debt in the Prescription Act is of wide application. It covers the right to sue for or claim emanating from, inter alia, a statute.
The right that arises in these proceedings is the right to claim condonation and extension of time to note an appeal.
The exercise of that right is set out in Rule 61 of the Supreme Court Rules 2018.
In terms of section 3 of the Interpretation Act [Chapter 1:01], a statutory instrument falls into the definition of an enactment.
The Supreme Court Rules 2018 are therefore an enactment, referenced in section 13(1)(b) of the Prescription Act.
To the extent that the right to claim condonation and extension of time is a debt, the right to claim it falls squarely into the ambit of Rule 61 of the Supreme Court Rules.
This Rule “imposes conditions on the institution of an action for the recovery of (the) debt.”
It is clear from the scheme of section 13(1) that the Prescription Act is subordinated to the requirements of Rule 61 of the Supreme Court Rules 2018.
That Rule specifies the period within which the debt may be claimed by use of the phrase “the late noting of the appeal and extend the time laid down…, for instituting an appeal.”
The conditions imposed by the Rule are demonstrable 'special circumstances' and instituting 'an application in writing.'
It is therefore my view, that, Rule 61 of the Supreme Court Rules 2018, is excluded from the application of section 15(d) of the Prescription Act by the provisions of section 13(1)(b) of the Prescription Act.
The preliminary point would fail on this score.
Again, the prescription argument falters on a proper construction of the provisions of section 20(2) of the Prescription Act.
In order to rely on prescription, the first respondent must successfully meet two procedural requirements: It must have pleaded the point in its opposing affidavit, failing which it must have sought the leave of the court to argue the point.
It did not do any of these two things.
The preliminary point is therefore improperly before me and ought to be struck out.
