IN
CHAMBERS
GUVAVA
JA:
[1] This
is an application for leave to appeal from a judgment of the Labor
Court. The court a
quo
found no merit in the application for leave to appeal and dismissed
it, on the main that the draft notice of appeal did not raise
questions of law. The applicant was dissatisfied with the judgment of
the court a
quo
and filed an application for leave in terms of r60 of the Supreme
Court Rules, 2018.
BACKGROUND
FACTS
[2] The
brief background of this application may be summarised as follows.
The
applicant was employed by the first respondent as a stock quality
analyst. He was charged with misconduct by the first respondent on
the basis that he had been found in possession of unauthorised email
communication which was between Group Executives. The first
respondent was of the view that the applicant's conduct amounted to
an act of unauthorised impingement of emails in the organisation. The
applicants conduct was aggravated by the fact that the applicant had
allegedly shared this information with other persons without the
written consent of the first respondent in terms of the first
respondent's IT policy.
[3] Following
a charge of misconduct, a hearing before the disciplinary committee
was set down but was postponed on six separate occasions at the
request of the applicant. On the final occasion, the disciplinary
committee
proceeded
to hear the matter and found the applicant guilty in absentia. He
was subsequently dismissed from employment.
[4] Following
the applicant's dismissal, he proceeded to file an appeal with the
Appeals Committee in terms of the Disciplinary Code. Again, the
applicant did not attend the hearing before the Appeals Committee and
the Committee proceeded to dismiss the appeal and to uphold the
decision by the Disciplinary Committee.
[5] The
applicant appealed to the Labour Court under LC/B/37/2019 before
MURASI J on the basis that the hearing committee had erred by not
finding that he was wrongfully charged. The applicant further averred
that the committee had erred in finding that he was in possession of
documents whereas the documents, subject to the charge, had been
loaded onto his computer following a breach of his password.
[6] The
first respondent raised a point in limine
to
the effect that the appeal was improperly before the court as the
applicant had not appeared before the two lower tribunals which
tribunals had issued default judgments against him and as such these
decisions could not be appealed against.
The
court proceeded to uphold the point in limine
and struck the matter off the roll.
[7] The
applicant then made an application for condonation of late filing of
an application for review and extension of time within which to file
an application for review.
The
court a
quo
dismissed the application. The court found that the applicant failed
to give a reasonable explanation for the delay in making a valid
application for review and that in any event he lacked prospects of
success on review.
[8] The
applicant subsequently sought for leave to appeal to this Court under
LC/MT/48/20. The applicant argued that the court a
quo
had made material omissions in its findings and that its discretion
had been based on wrong principles of law. He also attached his
intended notice of appeal to the application. The court a
quo
dismissed the application on the basis that the applicant's
intended grounds of appeal did not raise questions of law as required
by the Labour Court Rules. Undeterred by this dismissal the applicant
launched this application.
APPLICANT'S
SUBMISSIONS
[9] At
the hearing, the applicant raised a point in
limine
to the effect that the first respondent's opposing affidavit was
fatally defective in that it had omitted to cite the case references.
He also averred that the terminology in paragraph 27 of the first
respondent's notice of opposition was defective in as far as it
stated “our prayer” which was an attempt by the first respondent
to include persons who had had not appeared before the court a
quo.
[10] On
the merits, the applicant submitted that the court a
quo
misdirected itself by making findings of fact contrary to the
evidence presented, particularly that his dismissal took place on 31
August 2018 when the actual dismissal date had been 31 July 2018. It
was the applicant's case that his dismissal on that date
disregarded a valid sick note which was against Labour Laws and the
court a
quo
had failed to consider same. Applicant further argued that the court
a
quo
erred by failing to make a ruling on his application for rescission
of judgment and by failing to decide the matter based on the evidence
of the screenshot, emails and a forensic report.
RESPONDENT'S
SUBMISSISSIONS
[11] Counsel
for the first respondent, Mr. Maguchu,
opposed the preliminary points raised by the applicant and argued
that the failure to list the reference case numbers on the notice of
opposition does not render the notice of opposition defective as the
first respondent had clearly cited the case number SCB67/20. Counsel
further argued that the reference to “our prayer” under paragraph
27 of the notice of opposition was erroneously made and in any event
did not detract from the actual prayer sought. It was counsel's
argument that it was clear from the opposing affidavit that the
second and third respondents were not active in the matter and that
it was the first respondent which sought relief.
[12] Mr.
Maguchu,
also raised a preliminary point to the effect that the applicant's
intended notice of appeal was fatally defective as it did not cite
the correct date when the judgment appealed against was handed down.
Counsel further submitted that the relief sought by the applicant was
defective.
[13] On
the merits, it was counsel's argument that the applicant clearly
had a misunderstanding of what he sought to have impugned in the
judgment of the court a
quo.
Counsel further argued that the court did not err in dismissing the
applicant's application as it had no prospects of success on
appeal.
DETERMINATION
OF PRELIMINARY POINTS
[14] Both
parties raised preliminary points. I will deal with the applicant's
preliminary objections first. The point raised by the applicant
sought to impugn the first respondent's opposing affidavit on the
basis that it was fatally defective as it does not cite the reference
cases in the matter and the prayer sought is stated as “our prayer”
suggesting that it is for all the respondents. Rule 39 of the Supreme
Court Rules, 2018 ('the Rules') provides for the procedure under
which applications are made before this Court. In terms of r 39(3) a
respondent has a right to oppose to any application. Rule 39(3)
provides as follows:
“The
respondent shall have the right to file opposing affidavits within
five days of receipt of the application in terms of this rule and,
thereafter, the applicant shall have the right of filing answering
affidavits within a further period of five days calculated from the
date of receipt of the respondent's opposing affidavits.”
In
casu,
the first respondent timeously filed its notice of opposition and the
notice indicates the case number before this Court being SCB67/20. I
find nothing amiss with the notice of opposition as presented. There
is no rule of this Court which requires that every affidavit must
have a reference of corresponding cases. In fact the rule of practice
is that any affidavit or pleading in a matter must show the case
number under which it is made.
The
reason for this is obvious.
The
respondent must be responding to a particular case which has been
brought to the court by the applicant. It enables the registrar to
file the notice of opposition in the correct file.
This
is particularly important in matters such as this, where there has
been protracted litigation between the parties with many cases being
filed before the court.
In
my view, citation of case numbers is merely a management tool to
avoid misfiling of cases. It could never have been the intention that
the failure to cite reference files, which have come before the
court, would lead to a notice of opposition being defective.
[15] It
was also the applicant's argument that the relief sought by the
first respondent in its notice of opposition was defective as it
refered to “our” suggesting that it was for all the respondents
and not just the first respondent which had filed the opposition.
It
is not in dispute that the second and third respondents have not been
actively involved in this matter. It thus follows that a reference to
“our” in the respondent's prayer suggests reference to it
alone.
All
that the respondent sought was a dismissal of the application with
costs on a legal practitioner and client scale.
I
am not persuaded that the prayer of the 1st
respondent in the notice of opposition as framed, renders the
opposing affidavit fatally defective. Even if the Court is to give an
order for costs against the applicant such costs would be for the
first respondent as it is the only respondent before this Court.
The
applicant's preliminary points are thus devoid of merit and are
accordingly dismissed.
[16] With
regards to the first respondent's point in
limine,
it was submitted by counsel for the first respondent that the
appellant's notice of appeal is fatally defective as it does not
identify the correct date when the judgment appealed against was
handed down and that it has an incompetent relief sought in the
prayer.
It
was the first
respondent's
submission that on filing an application for leave to appeal the
applicant must attach a notice of appeal that complies with the
rules.
The
applicant opposed the point raised by the first respondent and argued
that the correct date when the judgment was handed down was 13 March
2019. The applicant did not however amend the notice of appeal which
is before me.
[17] Rule
59(3) of the Supreme Court Rules provides what should be included in
a notice of appeal. The rule states as follows:
“The
notice of appeal shall state –
(a)
The date on which the decision was given;
(b)
(c)
(d)
The exact nature of the relief sought;
(e)……..”
The
provisions are mandatory.
The
applicant accepted that the date on his draft notice of appeal was
incorrect. The applicant did not amend the date and as such the
notice of appeal as is remains defective as it has an incorrect date.
[18] It
is trite that the draft notice of appeal placed before the Court in
an application of this nature becomes the notice of appeal which
forms the basis of the appeal to be heard by the Court. It is thus
imperative that the draft notice of appeal must comply with the rules
of the court.
The
applicant's notice of appeal is thus defective in this regard.
[19] The
applicant's draft notice of appeal is also rendered defective by
the relief sought on appeal by the applicant. The
applicant's amended notice of appeal has the following relief
sought on appeal:
“WHEREFORE
the appellant prays for an order that:
(a)
The appeal is allowed with costs.
(b)
The judgment of the court a
quo
is set aside and is substituted with the following order:
'The
application is allowed with costs'
AND
IT IS ORDERED THAT:
PRAYER
(1)
Appellant
to file notice or Review to Labour Court within ten (10) days;
application to be heard before a different judge. (sic)
PRAYER
(2)
Supreme
Court to make such other order that the court considers speedy,
equitable and inexpensive to meet justice of case.”
It
is apparent that the applicant wanted an order that the Court siting
as an appeal court, grant him condonation and extension of time
within which to file his review application.
This
is not what the applicant sought in
casu.
In
Mudyavanhu
v Saruchera & Others
SC75/17
the
Court stated the following:
“Rule
29(1)(e) is specific in its language and requires that the relief
sought be exact and competent so that the court is left in no doubt
as to what exactly the appellant seeks.”
See
also
Sambaza
v AL Shams Global BVI Limited
SC3/18.
The
phrase 'exact nature of the relief sought' means that an
appellant must inform the Court of the relief he/she wants.
The
Supreme Court's mandate is to examine the correctness or otherwise
of a decision of the lower court. In doing so the court is guided by
the relief sought by the appellant. The need for the relief sought on
appeal to be exact cannot be over emphasised.
[20] The
applicant in
casu,
gives two prayers on appeal which are both incompetent.
The
first prayer is that this Court order that the applicant file his
notice of review to the Labour Court within ten days and for the
application to be heard before a different judge.
If
this Court finds for the applicant on appeal it will mean that he has
a right of audience before the Labour Court to make a fresh
application for review. The applicant will have to make a completely
fresh application for review in terms of the rules of the Labour
Court. He will have twenty-one days within which to make his
application for review as per the dictates of r20(1) of the Labour
Court Rules, 2017.
As
such the prayer sought under prayer (1) is untenable before this
Court.
[21] The
applicant's alternative prayer is for the Supreme Court to make an
order “as appear (sic)
to it necessary in the justice of the case”.
The
second prayer clearly fails to meet the threshold of the mandatory
rule which provides that the exact nature of the relief sought must
be given.
It
cannot be for this Court to draft a relief for the applicant, rather
the applicant should inform the Court of the redress he seeks.
The
relief sought renders the notice of appeal fatally defective.
The
first respondent's preliminary points thus have merit.
[22] I
also find it necessary to highlight that the defect in the
applicant's application is further compounded by the fact that his
grounds of appeal are not clear and concise and do not raise
questions of law.
A
reading of the applicant's eight grounds of appeal shows that they
are difficult to comprehend and attack the factual issues surrounding
the applicant's matter.
What
was before the court a
quo
was an application for condonation and extension of time within which
to file an application for review. The applicant's grounds of
appeal should challenge the court a
quo's
findings on the application. The applicant's grounds as they are
clearly do not do so.
[23] Rule
44(1) of the Rules provides that grounds of appeal must be clear and
concise. In Chikura
N.O & Anor v Al Sham's Global BVI Limited
SC17/17
the Court remarked that:
“It
is not for the Court to sift through numerous grounds of appeal in
search of a possible valid ground; or to page through several pages
of 'grounds of appeal' in order to determine the real issues for
determination by the Court. The real issues for determination should
be immediately ascertainable on perusal of the grounds of appeal.
That is not so in the instant matter. The grounds of appeal are
multiple, attack every line of reasoning of the learned judge and do
not clearly and concisely define the issues which are to be
determined by this Court.”
The
Court must not be left to guess what the appellant is challenging
exactly from the decision of the court a
quo.
[24] The
applicant must also ensure that his grounds of appeal raise questions
of law. Section 92F(1) of the Labour Act [Chapter
28:01]
provides that an appeal on a question of law only shall lie to the
Supreme Court from any decision of the Labour Court.
The
applicant in making an appeal must not only allege, but also show,
that the Labour Court misdirected itself on a point of law. Mere
regurgitation of facts, as has been done by the applicant in his
draft notice of appeal, will render the grounds of appeal defective.
[25] In
respect to costs the first respondent sought costs in the event that
it was successful. I find no basis to deny the first respondent its
costs as prayed.
[26] In
the result, the matter is struck off the roll with costs.
Calderwood,
Bryce Hendrie & Partners,
respondent's legal practitioners
