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
