In
Chambers in terms of Rule 5 of the Rules of the Supreme Court 1964
GWAUNZA
JA: This
is an application for the reinstatement of an appeal.
Factual
Background
The
respondent was employed by the applicant as a bank teller. On 15 June
2014, the respondent was presented with a US$20 bill for the payment
of US$12. The respondent is alleged to have signed the payment slip
to show that he had given the client his change. The client allegedly
came back a month later, claiming his change.
A
Closed Circuit Television footage confirmed the allegation that the
client had not been given his change.
The
respondent was charged with theft or fraud and was found guilty and
dismissed.
He
appealed to the Grievance and Disciplinary Committee which reached a
deadlock and referred the matter to NEC Appeals Board.
The
NEC Appeals Board ordered the respondent's reinstatement without
loss of salaries and benefits.
On
appeal to the Labour Court, the decision of the NEC Appeals Board was
upheld.
The
applicant then appealed against the decision of the Labour Court, to
this court, but the appeal was deemed to have lapsed because of the
applicant's failure to pay costs for the preparation of the
record.
Hence
this application.
The
degree of non-compliance and the explanation proffered for the
non-compliance
In
considering an application for reinstatement, MALABA JA (as he then
was), held that:
“The
question for determination is whether the applicant has shown a cause
for the re-instatement of the appeal. In considering applications for
condonation of non-compliance with its Rules, the Court has a
discretion which it has to exercise judicially in the sense that it
has to consider all the facts and apply established principles
bearing in mind that it has to do justice. Some of the relevant
factors that may be considered and weighed one against the other are:
the degree of non-compliance; the explanation therefore; the
prospects of success on appeal; the importance of the case; the
respondent's interests in the finality of the judgment; the
convenience to the Court and the avoidance of unnecessary delays in
the administration of justice.”
In
casu,
the Registrar of the Labour Court wrote a letter to the applicant
requesting payment of costs for the preparation of the record on 13
April 2016.
The
payment was to be made within 5 days that is, on or before 20 April
2016.
This
was in terms of Rule 34(1) of the rules of this court.
The
applicant's legal practitioner Mr Maguchu
alleges that he attempted to make payment on 27 April 2016, which was
seven days after the expiry of the time limit, but was informed that
the matter had been referred to the Registrar of the Supreme Court
and that he must await communication from that office.
The
length of the delay is in my view therefore, not inordinate.
The
main reason given by the applicant for not paying the costs within
the requested time was that its legal practitioner, Mr Maguchu,
was of the view that Rule 34(1) of the Supreme Court rules was not
applicable to appeals from the Labour Court. He accordingly engaged
the Registrar of this court, expressing this view.
The
Registrar interpreted the same rule differently and insisted on the
payment of the costs in question.
The
process eventually ended with Mr Maguchu
resolving to comply with the Registrar's request, but the appeal
had already been deemed to have lapsed.
I
take the view that Mr Maguchu
was misguided in his decision not to comply with the directions of
the Registrar, on the mere ground that he did not agree with the
latter's interpretation of the relevant court rules, and their
applicability to the matter.
Such
action was akin to taking the law into his own hands, conduct that is
improper and deplored under the law.
It
would have been prudent for him to comply with the Registrar's
request and thereafter, should he have felt the need to have the
matter definitively determined, apply to the court for a review of
the registrar's decision.
The
failure to comply with the rules in this case was therefore wilful,
albeit
on the part of the applicant's legal practitioner. It hardly needs
mention that rules of court must be followed in order to ensure
proper and good administration of justice.
In
Sibanda
v The State,
the court quoted the case of S
v McNab
1986 (2) ZLR 280 (S)
at
284E where DUMBUTSHENA CJ noted the following:
“I
have dealt at length on this point because it is my opinion that
laxity on the part of the court in dealing with non-observance of the
rules will encourage some legal practitioners to disregard the rules
of court to the detriment of the good administration of justice.”
I
found it quite tempting to follow the principle in McNab's
case,
and would have done so but for the fact that I do not believe it
would be fair on the applicant to visit this particular 'sin' of
its legal practitioner, on it.
The
matter concerned the interpretation of rules of the court, an issue
naturally falling outside the applicant's sphere of knowledge or
influence. Secondly, while Mr Maguchu's
conduct is deserving of censure, I do not find that it scales such
levels of seriousness, blatancy or unreasonableness as would merit a
dismissal of the application. In addition, and as indicated below, I
find that the applicant has some prospects of success on appeal.
In
the judicious exercise of my discretion in this matter I therefore
find it to be in the interests of justice to condone this particular
non-compliance with the rules of this court.
Prospects
of Success
The
applicant alleges that the court a
quo
erred in preferring the definition of fraud in the Criminal Law
(Codification and Reform) Act instead of a definition from the
Dictionary.
The
applicant further alleges that the court a
quo
erred in law in finding that the respondent's guilt had to be
proved beyond a reasonable doubt.
While
I perceive there to be nothing amiss in adopting the definition of
fraud as defined in the Criminal Law (Codification and Reform) Act, I
am not persuaded that an offence in a labour dispute must be proved
beyond a reasonable doubt.
It
is trite that proof in civil, disciplinary proceedings must be on a
balance of probabilities.
I
therefore hold the view that the judge a
quo
erred in applying a burden of proof that is applicable in a criminal
trial.
On
that ground, I find that the applicant may have reasonable prospects
of success on appeal.
Having
already found that both the period of and explanation for the delay
in complying with the rule in question were not unreasonable, I am
satisfied that the application ought to succeed.
However,
given the circumstances of this case, I find it would not be in the
interests of justice to saddle the respondent with an order of costs.
Instead, the costs ought to be borne by the applicant.
It
is in the premises ordered as follows:
1.
The application is granted.
2.
The appeal filed under case No. SC 447/15 be and is hereby
re-instated on the roll.
3.
The applicant is to pay the costs of this application.
Dube,
Manikai & Hwacha, applicant's
legal practitioners
Tavenhave
& Machingauta,
respondent's
legal practitioners
1.
Page 9 of the Chamber Application
2.
Page 13 of the Chamber Application
3.
Page 35 of the Chamber Application
4.
Page 5 of the Chamber Application
