BHUNU
JA: This
is an appeal against the whole judgment of the Labour Court (the
court a quo).
The order appealed against is dated 14 November 2018.
That
order upheld the respondent's objection in
limine
to the effect that the appellant's claim had prescribed.
Consequently
it dismissed the appellant's application for condonation of late
noting of appeal and extension of time within which to note the
appeal.
Aggrieved
by the judgment a
quo,
the
appellant approached this Court on appeal for relief.
PRELIMINARY
OBJECTION
On
30 of September 2019 the learned counsel for the respondent gave
notice of intention to raise a preliminary point premised on the
appellant's alleged failure to comply with the peremptory
provisions of r37(1)(a) of the Supreme Court rules 2018.
The
Rule provides as follows:
“37(1)
Every civil appeal shall be instituted in the form of a notice of
appeal signed by the appellant or his or her legal practitioners
which shall state –
(a)
the date on which, and the court by which, the judgment appealed
against was given;”
The
basis of the objection is that the appellant did not state the
correct date when judgment was handed down as is required by
r37(1)(a) of the Supreme Court Rules 2018.
The
submission is that the appellant in his notice of appeal stated 14
November 2018 as the date judgment was handed down when the actual
date of judgment was 3 May 2019.
A
perusal of the record of proceedings suggests that there were two
hearings presided over by the same judge involving the same parties
in the same case number LC/H/603.
The
first sitting was on 7 November 2018 where the learned judge a
quo
issued the following order under order number LC/H/ORD/1229/2018:
“WHEREUPON
after reading documents filed of record and hearing counsel for both
parties:
IT
IS ORDERED THAT:
1.
The preliminary issues are upheld.
2.
The claim is prescribed.
3.
The application for condonation of late noting of appeal and
extension of time be and is hereby dismissed with costs.”
The
second case according to the record of proceedings commenced on 7
November 2019 and the learned judge a
quo
issued
an order substantially on the same lines but under a different
judgment number LC/H/115/2019. The order reads:
“It
is accordingly ordered that:
1.
The preliminary issues are accordingly upheld, the claim is
prescribed.
2.
The application for condonation of late noting of appeal and
extension of time be and is hereby dismissed with costs.”
The
appellant in his sole discretion has elected to appeal against the
first order under order number LC/H/ORD/1229/2018. He correctly
stated the date on which the judgment was given as appears on the
face of the corresponding order.
He
has not appealed against the subsequent order of 2019 which appears
to be a restatement of the initial order of 2018 above.
Although
the dates of hearing appear suspiciously to have been confused that
issue was not ventilated before us.
We
therefore came to the unanimous conclusion that the appellant
correctly cited the date appearing on the face of the order appealed
against.
It
being an entrenched position in our law that one appeals against the
order of court and not the reasons we unanimously upheld the
appellant's contention that he had complied with the law by stating
the date appearing on the face of the first court order.
We
accordingly dismissed the respondent's objection in
limine
without any further ado.
The
appellant subsequently applied for leave to appeal to this Court. The
application was granted by the court a
quo
on
19 December 2018 with costs being costs in the cause.
BRIEF
SUMMARY OF THE CASE
The
appellant was employed by the respondent as a truck driver/salesman.
He was charged with theft of his employer's property and he paid an
admission of guilt fine to the police. He was subsequently dismissed
from employment for theft in terms of the respondent's registered
code of conduct on 29 January 2015.
He
appealed to the works council without success.
On
18 March 2015 he was served with a letter advising him of the
dismissal of his appeal and if aggrieved to appeal to the court a
quo
within a period of 14 days in terms of the registered code of
conduct.
The
appellant did not appeal to the court a
quo
within the prescribed time limit.
He
applied for condonation of late noting of appeal and extension of
time within which to note the appeal. His application was successful
and on 20 January 2016 he was ordered to lodge his appeal within 7
days of the order.
The
appellant was again in default by failing to comply with the 7 days
period.
He
again belatedly approached the court a
quo
2
years later on 17 August 2018 with an application for condonation of
late noting of appeal and extension of time within which to note the
appeal.
The
application was unsuccessful hence this appeal.
FINDINGS
OF THE COURT A
QUO
In
dismissing the application the court a
quo
found that the appellant's cause of action had prescribed in terms
of the Prescription Act [Chapter
8:11].
This was because of his failure to successfully prosecute his appeal
within the prescribed 3 year period from the date of his dismissal.
The
court a
quo
also found that in the absence of a provision in the registered code
of conduct authorising it to extend the 14 day period within which
the appellant was obliged to appeal, it had no jurisdiction to extend
the dies
induciae.
THE
APPELLANT'S GROUNDS OF APPEAL
Arising
from the above two findings of the court a
quo,
the appellant has raised the following two grounds of appeal:
“1.
The court a
quo
erred and misdirected itself at law by concluding that the
appellant's right to appeal the decision of the Works Council had
prescribed in terms of the Prescription Act [Chapter
8:11]
by computing the period (of) prescription began to run from 18 March
2015, while overlooking the fact that the Appellant's right to
appeal and time to appeal had been successfully condoned and extended
under LC/H/19/16 granted on the 20th
of January 2016.
2.
The court a
quo
erred and misdirected itself by concluding that (the) Labour Court
does not have jurisdiction and power to condone late filing of
appeals sought to be made outside the days stipulated by an
Employment Code agreed to by the parties and neither can the Labour
Court extend the time within which such appeals can be made outside
the days stipulated in an employment Code.”
ISSUES
FOR DETERMINATION
The
grounds of appeal raise two issues for determination:
1.
Whether or not the appellant's cause of action has prescribed.
2.
Whether or not the Labour Court has the jurisdiction to extend the
time within which to appeal set out in the employment code of
conduct.
WHETHER
OR NOT THE APPELLANT'S CAUSE OF ACTION HAS PRESCRIBED
It
is trite that ordinary debts are irrevocably extinguished by
prescription after 3 years in terms of s15(d) of the
Prescription Act.
Section
2 defines a debt as including anything that may be sued for. That
definition squarely brings an appeal within the ambit of the
definition of a debt.
The
definition therefore renders an appeal subject to the Prescription
Act.
It
is therefore necessary to ventilate the time frames in this case to
see if the appellant's appeal falls foul of the Act.
In
this regard it is common cause that the appellant's cause of action
arose from his dismissal from employment by the disciplinary
committee on 29 January 2015. The notice of dismissal was served on
him on 6 February 2015.
He
lodged various appeals and applications which interrupted the running
of prescription in terms of s7(2) of the Act. Subsection (3)(b)
however provides that if one fails to successfully prosecute his
cause of action and in this case his appeal to finality the
interruption shall lapse and the running of prescription shall not be
deemed to have been interrupted.
The
subsection provides as follows:
“(3)
Any interruption in terms of subsection (2) shall lapse, and the
running of prescription shall not be deemed to have been interrupted,
if the person claiming ownership in the thing in question —
(a)
does not successfully prosecute his claim under the process in
question to final judgment; or
(b)
successfully prosecutes his claim under the process in question to
final judgment, but abandons the judgment or the judgment is set
aside.”
The
section is couched in clear unambiguous terms.
Once
a litigant has failed to successfully prosecute his cause of action
and in this case his appeal to finality the interruption lapses and
the running of prescription is not deemed to have been interrupted.
APPLYING
THE LAW TO THE FACTS
It
is common cause that on 20 January 2016 the court a
quo
gave the appellant 7 days within which to prosecute his appeal with
effect from the date of the order. He failed to prosecute his appeal
within the prescribed period with the result that his appeal lapsed
and prescription was deemed not to have been interrupted by operation
of law.
Prescription
began to run on 6 January 2015 when he was served with notice of
dismissal, the set period of prescription of 3 years had already set
in as at the time of the court a
quo's
judgment on 14 November 2018.
In
Hodgson
v Granger & Anor
the court articulated the purpose of prescription, it said:
“It
is important, in this exercise of interpretation, to emphasise that
it is trite that the whole purpose of statutes of limitation is to
ensure that a person who has a valid cause of action, of which he is
aware, proceeds reasonably timeously to prosecution thereof before
events become 'stale'. It is absolutely clear that the purpose
is to penalise the dilatory creditor but not a creditor who is
unaware, through no fault of his own, of the cause of action at his
disposal.”
As
the appellant was eminently aware of his cause of action right from
the beginning way back in January 2015, his dilatoriness in
prosecuting his appeal deserves censure to give effect to the purpose
of the Act.
DISPOSITION
The
net effect of the appellant's failure to prosecute his appeal in
the court a
quo
is
that there can be no valid appeal before this Court in the absence of
any appeal having been placed before the court
a
quo
in respect of this matter.
The
appellant's failure to successfully note his appeal with the court
a
quo
within the 7 day period as ordered by the court sounded the death
knell for his appeal as the 3 year prescription period had already
run its course.
From
the foregoing, the learned judge a
quo
cannot be faulted for holding that the appellant's appeal has
prescribed for want of successful prosecution within a period of 3
years.
That
finding of fact strips the court of the jurisdiction to determine the
second issue.
That
being the case, the appeal can only fail. Costs follow the cause.
It
is accordingly ordered that:
1.
The appeal be and is hereby dismissed.
2.
The appellant is to bear the costs of suit.
GWAUNZA
DCJ: I
agree
HLATSHWAYO
JA: I
agree
Hungwe
and Partners,
the
appellant's legal practitioners
Dube
Manikai Hwacha,
the
respondent's legal practitioners
1.
1991 (2) ZLR 10 (H)
