This is a chamber application for leave to appeal against the judgment of the Labour Court in terms of Rule 5(2) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.
The applicant is a tertiary educational institution incorporated as such under the University of Zimbabwe Act [Chapter 25:16].
Both respondents are its former workers who were employed as research fellows at its Institute of Development Studies. They were dismissed from employment by the Disciplinary Tribunal on allegations of misconduct. They are alleged to have wilfully refused to obey a lawful order to be re-deployed from the Institute of Development Studies offices to the University campus.
Aggrieved by their dismissal from employment, they approached the Labour Officer complaining of unfair dismissal. The Labour Officer, in turn, referred their grievance for arbitration. The arbitrator ruled in their favour and made an award of reinstatement, and, in the alternative, damages in lieu of reinstatement.
Dissatisfied with the arbitration award, the applicant appealed to the Labour Court without success. Unhappy with the decision of the Labour Court, the applicant sought leave to appeal to this court. On 5 April 2013, the Labour Court granted the applicant leave to appeal to this Court.
The applicant did not, however, reinstate the respondent as ordered by both the arbitrator and the Labour Court. As the result, the respondents approached the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator assessed damages in the amounts of US$156,852=13 and US$134,362 respectively.
Aggrieved by the quantification award, the applicant, once again, appealed against that award to the Labour Court.
Despite the appeal, the respondents proceeded to register the award with the High Court for enforcement. A writ of execution and attachment of the applicant's property was subsequently issued.
The applicant made an urgent application for stay of execution without success. It then successfully appealed to this court for stay of execution pending appeal under judgment number SC06-13.
The applicant's appeal against the quantification award was subsequently dismissed by the Labour Court.
Its complaint is that CHIVIZHE J granted the application for dismissal of the appeal without a formal hearing of the appeal.
They allege, that, despite numerous requests, the honourable judge failed to provide the applicant with reasons for judgment, resulting in the lapse of time stipulated of the intended appeal.
It therefore became necessary to apply for condonation and extension of time to file an application for leave to apply to this Court.
Both parties filed heads of argument.
The applicant now alleges, that, while they were waiting for the set down date of hearing they were surprised to receive a written judgment by HOVE J dismissing the application for leave to appeal to this Court.
It is not clear to me, but, it appears that the matter was subsequently placed before the same judge who then properly heard the application and dismissed the applicant's claim under judgment LCH/H/472/2011 at page 56 of the record of proceedings.
It is this judgment which prompted this application.
In terms section 92F(3) of the Labour Act [Chapter 28:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court.
When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal, he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter on the merits as if it was a fresh application before him/her.
For that reason, while he may consider the criticisms levelled against the judge in the court a quo, these are not overriding considerations, because, he makes his own independent, fresh determination on the basis of the papers and arguments placed before him/her.
I now turn to consider the application for leave to appeal to this Court on the merits.
An application for leave to appeal to this Court is firmly grounded on the applicant's prospects of success on appeal.
In terms of section 92F of the Labour Act, appeals from the Labour Court only lie to this Court on a point of law.
In that regard, the first question for consideration is whether the applicant's grounds of appeal raise a point of law.
The grounds of appeal essentially raises the question whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order, under case number LC/H/145/11, without giving reasons for the order which it has branded a judgment.
The order is dated 31 October 2012 and it reads:
“IN THE LABOUR COURT OF ZIMBABWE
LC/H/145/11
In the matter between:
KWANELE JIRIRA & ANOTHER: Applicants
Vs
UNIVERSITY OF ZIMBABWE: Respondents
Before the Honourable B T Chivizhe, President
(IN CHAMBERS)
Whereupon, after reading documents filed of record:
IT IS ORDERED THAT -
The application for dismissal of appeal in terms of Rule 19(3)(a) of the Labour Court Rules be and is hereby granted.”
The above order is clearly not a judgment but an order given by the learned judge a quo sitting in chambers.
This is so because it does not bear a judgment number or reasons for judgment. It cites no legal representatives, signifying that none were heard - although both parties had legal representation.
This is clearly a default judgment.
It is not correct for the applicant to say, in its founding affidavit, that, the learned judge did not give reasons for its judgment. This is because, in the same breath, it confesses that the judgment was given pursuant to an application for dismissal of its appeal because of its failure to file heads of argument timeously.
It is therefore plain, that, the applicant's appeal was dismissed for want of compliance with the Rules.
Nowhere in its grounds of appeal does the applicant allege that it filed its heads of argument timeously.
