This is an appeal against the whole judgment of the Labour Court (the court a quo). The order appealed against is dated 14 November 2018.
That order upheld the respondent's objection in limine to the effect that the appellant's claim had prescribed.
Consequently, it dismissed the appellant's application for condonation of late noting of appeal and extension of time within which to note the appeal.
Aggrieved by the judgment a quo, the appellant approached this Court, on appeal, for relief.
The appellant subsequently applied for leave to appeal to this Court. The application was granted by the court a quo on 19 December 2018 with costs being costs in the cause....,.
BRIEF SUMMARY OF THE CASE
The appellant was employed by the respondent as a truck driver/salesman. He was charged with theft of his employer's property and he paid an admission of guilt fine to the police. He was subsequently dismissed from employment for theft in terms of the respondent's registered Code of Conduct on 29 January 2015.
He appealed to the Works Council without success.
On 18 March 2015, he was served with a letter advising him of the dismissal of his appeal, and, if aggrieved, to appeal to the court a quo within a period of 14 days in terms of the registered Code of Conduct.
The appellant did not appeal to the court a quo within the prescribed time limit.
He applied for condonation of late noting of appeal and extension of time within which to note the appeal. His application was successful, and, on 20 January 2016, he was ordered to lodge his appeal within seven (7) days of the order.
The appellant was, again, in default, by failing to comply with the seven (7) days period.
He, again, belatedly approached the court a quo two (2) years later, on 17 August 2018, with an application for condonation of late noting of appeal and extension of time within which to note the appeal.
The application was unsuccessful hence this appeal.
FINDINGS OF THE COURT A QUO
In dismissing the application, the court a quo found, that, the appellant's cause of action had prescribed in terms of the Prescription Act [Chapter 8:11]. This was because of his failure to successfully prosecute his appeal within the prescribed 3 year period from the date of his dismissal.
The court a quo also found, that, in the absence of a provision in the registered Code of Conduct authorising it to extend the 14-day period within which the appellant was obliged to appeal, it had no jurisdiction to extend the dies induciae.
THE APPELLANT'S GROUNDS OF APPEAL
Arising from the above two findings of the court a quo, the appellant has raised the following two grounds of appeal:
“1. The court a quo erred and misdirected itself at law by concluding that the appellant's right to appeal the decision of the Works Council had prescribed in terms of the Prescription Act [Chapter 8:11] by computing the period (of) prescription began to run from 18 March 2015, while overlooking the fact that the Appellant's right to appeal, and time to appeal, had been successfully condoned and extended under LC/H/19/16 granted on the 20th of January 2016.
2. The court a quo erred and misdirected itself by concluding that (the) Labour Court does not have jurisdiction and power to condone late filing of appeals sought to be made outside the days stipulated by an Employment Code agreed to by the parties and neither can the Labour Court extend the time within which such appeals can be made outside the days stipulated in an employment Code.”
ISSUES FOR DETERMINATION
The grounds of appeal raise two issues for determination:
1. Whether or not the appellant's cause of action has prescribed.
2. Whether or not the Labour Court has the jurisdiction to extend the time within which to appeal set out in the employment Code of Conduct.
WHETHER OR NOT THE APPELLANT'S CAUSE OF ACTION HAS PRESCRIBED
It is trite that ordinary debts are irrevocably extinguished by prescription after three (3) years in terms of section 15(d) of the Prescription Act.
Section 2 of the Prescription Act defines a debt as including anything that may be sued for. That definition squarely brings an appeal within the ambit of the definition of a debt.
The definition therefore renders an appeal subject to the Prescription Act.
It is therefore necessary to ventilate the time frames in this case to see if the appellant's appeal falls foul of the Prescription Act.
In this regard, it is common cause that the appellant's cause of action arose from his dismissal from employment by the disciplinary committee on 29 January 2015. The notice of dismissal was served on him on 6 February 2015.
He lodged various appeals and applications which interrupted the running of prescription in terms of section 7(2) of the Prescription Act. Subsection (3)(b), however, provides, that, if one fails to successfully prosecute his cause of action, and, in this case, his appeal, to finality, the interruption shall lapse and the running of prescription shall not be deemed to have been interrupted.
The subsection provides as follows:
“(3) Any interruption in terms of subsection (2) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question —
(a) Does not successfully prosecute his claim under the process in question to final judgment; or
(b) Successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”
The section is couched in clear, unambiguous terms.
Once a litigant has failed to successfully prosecute his cause of action, and, in this case, his appeal, to finality, the interruption lapses and the running of prescription is not deemed to have been interrupted.
APPLYING THE LAW TO THE FACTS
It is common cause, that, on 20 January 2016, the court a quo gave the appellant seven (7) days within which to prosecute his appeal with effect from the date of the order. He failed to prosecute his appeal within the prescribed period with the result that his appeal lapsed and prescription was deemed not to have been interrupted by operation of law.
Prescription began to run on 6 January 2015 when he was served with notice of dismissal; the set period of prescription of three (3) years had already set in as at the time of the court a quo's judgment on 14 November 2018.
In Hodgson v Granger & Anor 1991 (2) ZLR 10 (H) the court articulated the purpose of prescription, it said:
“It is important, in this exercise of interpretation, to emphasise, that, it is trite that the whole purpose of statutes of limitation is to ensure that a person who has a valid cause of action, of which he is aware, proceeds reasonably timeously to prosecution thereof before events become 'stale'. It is absolutely clear that the purpose is to penalise the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.”
As the appellant was eminently aware of his cause of action right from the beginning, way back in January 2015, his dilatoriness in prosecuting his appeal deserves censure to give effect to the purpose of the Prescription Act.
DISPOSITION
The net effect of the appellant's failure to prosecute his appeal in the court a quo is that there can be no valid appeal before this Court in the absence of any appeal having been placed before the court a quo in respect of this matter.
The appellant's failure to successfully note his appeal with the court a quo within the 7-day period, as ordered by the court, sounded the death knell for his appeal as the 3-year prescription period had already run its course.
From the foregoing, the learned judge a quo cannot be faulted for holding that the appellant's appeal has prescribed for want of successful prosecution within a period of three (3) years.
That finding of fact strips the court of the jurisdiction to determine the second issue.
That being the case, the appeal can only fail. Costs follow the cause.
It is accordingly ordered that:
1. The appeal be and is hereby dismissed.
2. The appellant is to bear the costs of suit.
