ZIYAMBI
AJA:
[1]
This
is an appeal against a judgment of the Labour Court dismissing an
application for condonation of the late filing of an application for
leave to appeal to the Supreme Court.
[2]
It
arises from the facts set out briefly hereunder. The appellant, in
2010, embarked on a retrenchment exercise which affected the
respondents, among others. Following the usual negotiations with the
works council, a retrenchment agreement was concluded between the
appellants' and the respondents' representatives on 8 December
2010. Thereafter pursuant to this agreement each respondent was
requested to, and did, sign an 'Acknowledgement Form' containing
the agreed terms of the retrenchment. With specific reference to
motor vehicles and lap tops, the agreement provides:
“Vehicle
+5years – Drive out
-5years
- Calculated at book value
Laptop
Take out at book value”.
Certain
items like housing and clothing allowances were provided for in the
following terms:
“….Housing
Allowance – in terms of Bank Policy.
Clothing
Allowance – in terms of Bank Policy.”
[3]
The
above notwithstanding, the appellant refused to avail the vehicles
and laptops to the respondents reasoning that in terms of the
respondents' contracts of employment they were not entitled to the
same. The dispute was referred to arbitration and the Arbitrator
ruled in favour of the respondents.
The
appellant's appeal to the Labour Court was dismissed on 24 October
2012. The judgment is date stamped 30 November 2012. In terms of the
Labour Act
an appeal on a point of law only lay, with leave, to the Supreme
Court. Any application for leave was to be made within 30 days of the
date of the judgment.
No application was filed within that period.
[4]
On
the 11 September 2013, the appellant filed an application for
condonation of the late filing of an application for leave to appeal
to the Supreme Court. The reason for the delay was said to be the
failure of the office of the Registrar to notify the appellant or its
legal practitioners of the delivery of the judgment. No explanation
was given by the appellant as to how it eventually became aware of
the judgment. The learned Judge found the delay to be inordinate and
the explanation for the delay unreasonable. Regarding the prospects
of success, the learned Judge after considering the contents of the
retrenchment agreement as set out in the ACKNOWLEDGMENT FORM as read
with the judgment sought to be appealed against concluded:
“It
is, in my view, unlikely that an appeal court will interfere with the
findings and conclusions reached in this matter, based on the clear
and unambiguous contents of the retrenchment agreement.”
An
application for leave to appeal against this judgment was dismissed
by the Labour Court but subsequently granted by this Court.
THE
APPEAL
[5]
The first ground of appeal
alleged an error at law by the court a
quo
in finding that the delay was inordinate and the explanation therefor
unreasonable. The second alleged a misdirection at law by that court
in ruling that the appellant had no prospects of success on appeal in
the main matter.
[6]
The
appeal runs foul of two legal principles. The first is s 92F(1) of
the Labour Act
which provides that an appeal on a question of law only shall lie to
the Supreme Court from any decision of the Labour Court. The second
is that the
indulgence of condonation is granted or denied at the discretion of
the court of first instance and an appellate court will not, except
in limited circumstances,
interfere with the exercise by the lower court of that discretion.
[7]
Regarding the first ground of appeal, merely using the words 'erred
in law' does not create a point of law. It must clearly appear from
the ground of appeal what point of law is sought to be determined.
In that connection it has been held that a serious misdirection on
the facts would amount to a question of law.
A finding that the delay in making an application is inordinate and
the explanation for the delay unreasonable, is a factual finding.
Such a finding does not qualify as a point of law unless it is
grossly unreasonable, that is, unless it is a finding that no
reasonable court faced with the same facts would have made. No
allegation of gross unreasonableness has been made nor is any
apparent on the record. Accordingly, this ground of appeal, not being
on a point of law, is invalid.
[8]
As to the second ground of appeal, it is vague and embarrassing, to
say the least. The appellant has not indicated in this ground of
appeal what point of law is to be determined on appeal. A finding
that there are no prospects of success on appeal was made by the
court
a quo.
Simply to allege a 'misdirection in law' by the court without
alleging the nature of the misdirection does not advise this Court of
the point of law on which its decision is required. The second ground
of appeal is also invalid in that it does not disclose a point of
law.
[9]
In any event, condonation is an indulgence granted at the discretion
of the court of first instance and is not a right obtainable on
request. In an application for condonation, a court considers, among
other things, the length of the delay, the reasonableness of the
explanation for it, the prospects of success, and the need for
finality in litigation. Here, the delay was found to be inordinate,
the explanation proffered for the delay unreasonable and the
prospects of success non-existent.
[10]
Where a discretion has been exercised and a decision arrived at by a
court of first instance the principles enunciated in Barros
and Anor vs Chimphonda
are applicable. They were stated by GUBBAY CJ as follows:
“It
is not enough that the Appellate Court considers that if it had been
in the position of the primary court, it would have taken a different
course. It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle, if
it allows extraneous or irrelevant matters to guide or affect it, if
it mistakes the facts, if it does not take into account some relevant
consideration, then its determination should be reviewed, and the
Appellate Court may exercise its own discretion in substitution…”
[11]
The judgment of the court a
quo
is well reasoned. The learned Judge carefully assessed all the
relevant factors. Nothing was alleged, or proved, to justify
interference by this Court with the judgment of the lower court.
[12]
It is for the above reasons that, after hearing submissions by
counsel, the appeal was dismissed with costs.
GOWORA
JA: I
agree
BHUNU
JA: I
agree
T
H Chitapi & Associates, Appellant's Legal Practitioners
Matsikidze
& Mucheche, Respondent's Legal Practitioners
1.
[Chapter 28:01]
2.
Labour Court Rules 2006, Rule 36
3.
Chapter 28:01
4.
See Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)
5.
Small Enterprises Development Corporaton v David Chemhere SC23/02
6.
National Foods v Mugadza SC 105/1995; Hama v National Railways of
Zimbabwe SC 96/1996
7.
Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR217 (SC); Vimbai
Mbisva v Rainbow Tourism rop Limited T/A Ranbow Hotel & Towers SC
32/09; Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR
251 (S) at 256 B-C; Chinyange v Jaggers Wholesalers SC 24/03
8.
Supra at para [6]
9.
At pp 62F-63A
