MATHONSI
JA:
The
delay in handing down judgment in this matter, especially considering
the manner in which the matter will be disposed of, is most sincerely
regretted.
The
appellant employed the respondent as a security officer. It has
appealed against the entire judgment of the Labour Court (“the
court a
quo”)
handed down on 14 September 2012. The judgment allowed an appeal by
the respondent against the decision of the appellant's disciplinary
committee (“the committee”) which found him guilty of misconduct
and dismissed him from employment.
THE
FACTS
On
a date that is not material, the respondent allegedly gave copies of
his payslips to a former employee of the appellant who was involved
in a labour dispute with the appellant. The payslips were duly
attached as evidence by the former employee to his court papers which
were served on the appellant.
Thereafter,
the appellant charged the respondent with two counts of misconduct
for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of
Conduct. Specifically, the respondent was accused of committing any
act, misconduct or omission inconsistent with the express or implied
conditions of employment and acting in conflict with the Group
Business or Editorial Policies.
I
note in passing that the single act gave rise to two separate charges
neither of which was preferred in the alternative, a glaring
irregularity that was not adverted to by either of the parties at the
hearing of the matter, as it offends the rule against the splitting
of charges.
The
issue was not raised with counsel and it cannot be a point on which
this appeal may turn.
In
his written response to the charges, the respondent denied that he
had furnished the former employee with his payslips for personal use.
He
appeared before a disciplinary committee on 19 November 2010. At the
hearing of the matter, the respondent argued that the disclosure of a
payslip was not an act of misconduct specifically provided for in the
code of conduct. He further argued that the prohibition against
disclosure of a payslip was only introduced after he had been
charged.
At
the end of the hearing, the disciplinary committee found that the
copies of the payslips attached to the former employee's
application appeared to belong to the respondent, that two witnesses
testified that the respondent had admitted to them that he had given
his payslips to the former employee and that the respondent, in
furnishing his payslips to the former employee, was being disloyal to
the employer.
On
the basis of these findings, the committee duly found the respondent
guilty and dismissed him from employment.
I
also note at this stage that there was no specific finding by the
disciplinary committee that the respondent knew at the time he
allegedly gave his payslips to the former employee of the appellant
that his conduct was prohibited. It was the finding of the
disciplinary committee that, by giving his payslips to the former
employee, the respondent acted disloyally.
Aggrieved
by that decision, the respondent appealed to the Group Chief
Executive Officer. He raised a number of grounds of appeal:
(i)
The first was that the “offence involving payslips” was not
provided for in his contract of employment or the code of conduct and
that the endorsement on all payslips that they are “private and
confidential” only appeared after his conviction and not before.
(ii)
Secondly, the respondent argued that there was no evidence of any
wrongdoing on his part and that the charges preferred against him
were contrary to public policy as the appellant wanted to further its
illegal practice of underpaying workers and, as such, the respondent
was not obliged to protect such an interest.
The
respondent also alleged that the verdict of guilty went against the
weight of evidence in that the former employee testified that he had
not received the payslips from the respondent and no evidence was led
to controvert such testimony.
He
also attacked the procedure adopted in sentencing him alleging that
he was not called upon to mitigate before the penalty was imposed on
him.
Finding
no merit, the appellant's Group Chief Executive Officer dismissed
the appeal.
He
found that the offence was provided for in the appellant's code of
conduct and that the disclosure of payslips or copies of payslips to
any third party is inconsistent with the implied conditions of the
employment contracts of all the appellant's employees and in direct
conflict with the interests of the Group.
He
found that the burden of proof was on the respondent to prove that he
did not give his payslips to the former employee. It was his finding
that the respondent had failed to discredit the evidence that his
payslips were found attached to the former employee's court papers.
The
Group Chief Executive Officer relied on the minutes of the
disciplinary committee hearing in holding that the respondent had
made an admission to the two witnesses called by the appellant.
PROCEEDINGS
A
QUO
Still
dissatisfied, the respondent noted an appeal to the court a
quo
on a multiplicity of grounds, nine in total. Only three of those
grounds of appeal raised issues of law.
In
essence, they raised the issue whether the respondent's conduct, if
proved, amounted to an act inconsistent with the express or implied
conditions of his contract of employment.
This
is so because the respondent's conduct complained of occurred
immediately before the condition that payslips were private and
confidential was introduced. This, in addition to the other issues,
was a live issue that had to be determined.
Using
somewhat different language, the court a
quo
also identified the issue of whether the conduct of giving a payslip
to a third party prior to their being endorsed “private and
confidential” constituted a misconduct.
The
court a
quo
regarded it as the sole issue for determination.
In
a rather terse judgment, the court a
quo
upheld the appeal on essentially three premises namely:
1.
That the respondent and all other employees of the appellant were not
aware that furnishing their payslips to another was conduct
inconsistent with the terms of their employment.
2.
That there was no evidence on record to prove that the respondent had
given his payslips to the former employee.
3.
That the failure to allow the respondent the opportunity to mitigate
before the pronouncement of a penalty was incurably bad and vitiated
the entire proceedings.
PROCEEDINGS
BEFORE THIS COURT
The
roles were immediately reversed. Dissatisfied with the decision of
the court a
quo,
it became the appellant's turn to appeal to this court.
It
attacked the decision a
quo
on several bases:
(i)
First, that the court a
quo
erred in finding that the respondent was not properly charged.
(ii)
Second, that it erred in finding that the respondent was not aware
that the confidential nature of the payslips did not have to be spelt
out.
(iii)
Third, that it erred in finding that there was no adequate evidence
before the disciplinary committee that the respondent had given his
payslips to the former employee.
(iv)
Lastly, that the court a
quo
erred in finding that the failure to mitigate vitiated the
proceedings as dismissal was the only appropriate penalty in terms of
the code of conduct.
At
the commencement of the hearing of the appeal, Mr Museba,
who appeared for the appellant, made an oral application to amend the
prayer in the notice of appeal.
Counsel
desired to insert words to provide for an order that the appeal be
allowed. He did so upon a realization that this was omitted in the
prayer contained in the notice of appeal.
Mr
Museba,
submitted that no prejudice will be suffered by the respondent if the
amendment is granted especially as the respondent's counsel had not
even picked up the defect in the prayer. In fact, the respondent had
prepared to meet the appeal without regard to the defect.
While
acknowledging that he had not even noticed the defect, Mr Mapuranga
for the respondent opposed the application for the amendment.
He
submitted that the notice of appeal must clearly set out the relief
sought. If it fails to do so, it is null and void and cannot be
amended for the reason that one cannot amend a nullity.
For
his part, Mr Museba
was quick to concede that the prayer is defective as it does not meet
the requirements of Rule 37(1)(e) of the Supreme Court Rules, 2018.
He however refuted that the defect is one which renders the appeal a
nullity. In his view, the court is empowered by Rule 41 to allow an
amendment to the grounds of appeal or to any pleadings filed before
it, presumably including a prayer.
ANALYSIS
It
has been stated repeatedly by the courts that a failure to comply
with the mandatory provisions of the rules when lodging an appeal
renders the appeal a nullity. See Matanhire
v BP Shell Marketing Services (Pvt) Ltd
2004 (2) ZLR 147 (S).
Generally,
where a notice of appeal does not comply with the rules, the matter
ought to be struck off the roll. This is because a nullity cannot be
amended. See Chikura
N.O & Anor v Al Shams Global BVI Ltd
SC 40/17.
The
belated application for an amendment is meant to bring the appeal
within the remit of Rule 37(1) which requires that every civil appeal
shall be instituted in the form of a notice of appeal signed by the
appellant or his or her legal practitioner which shall state inter
alia
“the exact relief sought.”
The
relief sought by the appellant in this case is couched in the
following words:
“WHEREFORE
appellant prays that the judgment of the court a
quo
be altered to read as follows –
'The
appeal be and is hereby dismissed.'”
If
the proposed amendment, is granted, the prayer will read:
“WHEREFORE
the appellant prays that the appeal be allowed with the judgment of
the court a
quo
altered to read as follows -
'The
appeal be and is hereby dismissed.'”
The
concession made by Mr Museba
that the prayer is defective is properly made.
The
question however is whether the application should be granted. Put in
another way: can the defective prayer be amended?
This
Court was confronted with a similar situation in the case of Ndlovu
& Anor v Ndlovu & Anor
SC133/02. In that case the prayer in the notice of appeal was couched
in the following terms:
“… that
the judgment of the court a
quo
be dismissed with costs.”
Writing
for the court, MALABA JA (as he then was) followed the reasoning in
Jensen
v Acavalos
1993 (1) ZLR 216 (S) at 220B-D. He observed that the notice of appeal
was clearly defective as there was no mention whether the whole or
only part of the judgment was being appealed against and the exact
nature of the relief sought.
At
p2 of the cyclostyled judgment, he stated:
“In
this case there was no mention of whether the whole or part only of
the judgment was being appealed against. The exact nature of the
relief sought was not stated. What was prayed for in the notice of
appeal was that the judgment of the court a
quo
be dismissed with costs. It is the appeal which is dismissed or
allowed. If the appeal is allowed the judgment or decision appealed
against is then set aside and a new order substituted in its place.
In this case it was not known what order the appellants wanted this
Court to make in the event the appeal succeeded.”
The
court concluded that the notice of appeal which purported to
institute the appeal “was incurably defective.” As there was no
appeal before the court, the matter was struck off the roll with
costs.
The
case of Ndlovu
& Anor v Ndlovu & Anor
is on all fours with the present matter.
It
has not been suggested that a departure from the case is called for.
It settles this matter because the prayer is incurably defective. It
cannot be amended.
DISPOSITION
A
notice of appeal which does not meet the requirements of the rules of
court is fatally defective and invalid. A fatally defective
compliance with the rules on the filing of an appeal cannot be
condoned or amended.
The
appellant's notice of appeal suffers the fate of all fatally
defective appeals.
Having
come to the conclusion that there is no valid appeal before the
court, there is no basis for relating to the merits.
In
the result, it be and is hereby ordered as follows:
1.
The matter is struck off the roll.
2.
The appellant shall bear the costs.
MAKARAU
JA:
I agree
GOWORA
JA:
I agree
Messrs
Muzangaza Mandaza & Tomana,
appellant's legal practitioners
Messrs
Manyangadze Law Practice, respondent's legal practitioners
