IN
CHAMBERS
KUDYA
AJA: This
composite application for condonation and extension of time for leave
to appeal and leave to appeal raises an interesting question.
It
is whether an applicant who seeks and is denied condonation for the
late filing of an application for leave to appeal in a lower court
and therefore fails to make the actual application for such leave in
that court, can procedurally seek leave to appeal from a judge of
this Court in chambers.
The
applicant filed the present application on 25 March 2021.
It
seeks condonation and extension of time for leave to appeal and leave
to appeal against the original judgment handed down by the Labour
Court on 24 February 2017.
The
application is opposed by both respondents.
The
Facts
The
applicant is a constitutional body established in terms of section
254 of the Constitution of Zimbabwe, 2013. It is charged with the
responsibility of combating corruption in all its manifestations in
Zimbabwe.
The
two respondents are former employees of the applicant. The first
respondent was a General Manager Finance, Administration and Human
Resources and the second respondent was a Chief Accountant.
The
two were charged with misconduct, found guilty and discharged from
employment on 14 July 2016. They filed an application for review
against the composition and findings of the Disciplinary Committee.
The review application was based on 10 grounds. They sought, firstly,
the nullification of their suspension, verdict and sentence and
secondly their reinstatement to their previous positions on full
benefits.
The
applicant refuted each and every ground of review.
Findings
of the Court a
quo
On
24 February 2017, the court a quo dismissed the first three grounds
of review that impugned the procedural propriety of amending the
statute under which they were charged from the Anti-Corruption Act
[Chapter
9:22]
to the Labour
(National Employment Code of Conduct) Regulations, 2006 SI 15/2006
model
law.
It
found on the authority of Standard
Chartered Bank v Matsika
1996 (1) ZLR 12 (S) that the amendment of the statute under which
they were charged from the Anti-Corruption Act to the National
Employment Code Model was proper. The amendment did not alter the
charges of domiciling Treasury funds in their own company instead of
in the account of the applicant nor was it prejudicial to the two as
they were afforded adequate time of at least a month within which to
respond to the charges and prepare their defences.
The
Labour Court, however, upheld grounds 4 and 5, which it found to be
dispositive of the review application without considering the
remaining grounds of review.
It
found that the Disciplinary Committee was improperly constituted and
held on the authority of
Madoda
v Tanganda Tea Co
1999
(1) ZLR 374, that it was voidable at the instance of the prejudiced
respondents. It set aside the proceedings and remitted the matter to
a properly constituted Disciplinary Committee.
The
remittal was based on the sentiments of MUCHECHETERE JA in Standard
Chartered Bank of Zimbabwe Ltd v Chikomwe & Ors
SC77/2000 that:
“…reinstating
the respondent in the circumstances implies a finding that
respondents were innocent of the charges of misconduct against them
by the hearing officers… A setting aside of the proceedings of the
disciplinary committees should therefore lead the parties to the same
position before the hearing in the disciplinary committees - appeals
before a properly constituted disciplinary committee.”
The
two respondents therefore remained on suspension but on full salary
and benefits.
In
terms of Rule 36 of the Labour Court Rules SI 59/06 the applicant had
30 days from the date of the judgment within which to apply for leave
to appeal to the Supreme Court against the judgment of 24 February
2017.
It
failed to do so.
On
5 October 2017, it applied for the upliftment of the bar and
condonation for late filing of an application for leave to appeal. It
did not co-join this application with an application for leave to
appeal.
On
23 February 2018, the Labour Court dismissed the application for
upliftment and condonation.
The
requirements for such an application were the extent of the delay,
the reasonableness of the delay and prospects of success and the
absence of prejudice to the other parties.
The
Labour Court found the delay inordinate and the explanation for the
delay unreasonable. It was unable to assess whether or not there were
prospects of success in the absence of a draft notice of appeal. It
reasoned that without the draft notice of appeal, it was unable to
ascertain whether the grounds of appeal were based on points of law
as mandated by section 92F(1) of the Labour Act [Chapter
28:01].
This
was despite the fact that the applicant had raised substantive points
of law impugning the review judgment.
The
Labour Court clearly abdicated its responsibility to determine
whether on the averments and arguments submitted in the application
for condonation there were prospects of success. However, having
found the application to be defective for lack of a draft notice of
appeal, the proper course of action that the Labour Court should have
taken was to strike off the application from the roll and not to
dismiss it.
Faced
with this legal conundrum,
on 16 March 2018, the applicant sought leave to appeal against the
upliftment and condonation judgment, before the Labour Court.
The
application was heard on 25 June 2018 and dismissed on 17 August
2018. The basis for the dismissal was that the applicant failed to
demonstrate that the intended appeal raised a question of law and
that there were prospects of success on appeal.
On
28 August 2018, the applicant timeously sought leave to appeal
against the upliftment and condonation judgment.
It
did not seek leave to appeal against the review judgment.
On
19 October 2019, the application was struck off the roll by
HLATSHWAYO JA, as he then was, for lack of the record of proceedings
pertaining to the upliftment and condonation proceedings.
That
record was availed by the Labour Court on 7 March 2019.
The
applicant then filed an application for condonation for the late
filing of leave to appeal in SC203/2019.
The
matter was set down before MAVANGIRA JA on 25 August 2019.
She
wrote a detailed 8 paged judgment SC91/19 in which the application
was struck off the roll with costs for the reason that it was lodged
under the wrong rule.
In
the body of the judgment MAVANGIRA JA lamented the fact that the
applicant was assailing the upliftment and condonation judgment
instead of the review judgment.
She
found it absurd that she was being requested to grant leave to appeal
the upliftment and condonation judgment, which once granted would
then enjoin the Supreme Court to determine whether or not to direct
the Labour Court to grant condonation and hear the actual application
for leave.
She
intimated that the applicant was enjoined by section 92F(3) of the
Labour Act to seek leave from a judge of the Supreme Court in
chambers once the Labour Court declined to grant it condonation for
the late filing of an application for leave to appeal.
On
5 December 2019, the applicant sought condonation and extension of
time to appeal under Rule 43(3) in SC685/19.
The
application was struck off the roll by HLATSHWAYO JA, on 24 January
2020, on the ground that it should have been brought as a composite
application.
On
29 May 2020, under SC201/20, the applicant filed yet another
application.
On
16 July 2020, GUVAVA JA removed it from the roll with costs and
ordered that the matter could only be reinstated upon the payment of
the respondents taxed costs in SC685/19.
The
taxed costs were duly paid.
The
re-enrolled application was heard by MAKONI JA on 23 September 2020.
Apparently the draft notice of appeal did not identify the judgment
sought to be appealed. The applicant, therefore withdrew the
application and tendered the respondents costs on the scale of legal
practitioner and client.
The
preceding five applications were lodged against the upliftment of the
bar and condonation judgment.
The
present application is the first one that seeks condonation and
extension of time to file an application for leave to appeal and the
application for leave to appeal against the review judgment.
It
will be recalled that the review judgment was handed down by the
Labour Court on 24 February 2017.
It
is common cause that the applicant never did seek leave to appeal
from the Labour Court after its stand-alone application for
condonation and extension of time to file leave to appeal was
dismissed.
Mr
Mapuranga,
for the respondents, took two points in
limine
on that very point:
(i)
The first was that the applicant could only make a chamber
application for leave to appeal to a judge of this Court after such
leave had been denied by the Labour Court. He therefore submitted
that the application was improperly before me.
(ii)
The second was that the sole ground of appeal sought to be raised was
so vague as to not specify clearly and in unambiguous terms exactly
what case the respondent must be prepared to meet. He argued that the
ground of appeal being fatally defective rendered the application a
nullity.
Per
contra,
Mr Ndlovu,
for
the applicant contended that the ground of appeal was clear and
concise, and not vague.
Regarding
the second preliminary point, he contended that the application was
properly before me. He premised his argument on the lamentation of
MAVANGIRA JA in SC91/94.
I
turn to consider the diametrically opposed arguments.
The
applicant was taken on a wild goose chase by its erstwhile legal
practitioners between the time they took over the matter from the
Civil Division of the Attorney General's Office in September 2017
to date.
They
correctly sought condonation for the late filing of the application
for leave to appeal. It is not clear to me why they did not co-join
that application with the actual application for leave to appeal.
When
that application was dismissed, the applicant's legal practitioners
did not know what to do. Their response was to file six consecutive
but defective applications to this Court.
By
their own admission, they are not well acquainted with the Supreme
Court Rules, 2018.
Even
after MAVANGIRA JA suggested that they should pursue leave in the
main review matter, they still brought two ill-fated applications
against the upliftment and condonation judgment before deciding to
take up the learned judge of appeal's “advice”.
The
first preliminary point raises an important question on the course of
action an applicant ought to take when an application for condonation
for leave to appeal is refused.
In
my view, the answer is provided as rightly observed by MAVANGIRA JA
in section 93F(3) of the Labour Court Act. The section reads:
“92F
Appeals against decisions of Labour Court
(1)
An appeal on a question of law only shall lie to the Supreme Court
from any decision of the Labour Court.
(2)
Any party wishing to appeal from any decision of the Labour Court on
a question of law in terms of subsection (1) shall seek from the
President who made the decision or, in his or her absence, from any
other President leave to appeal that decision.
[Subsection
amended by section 18 of Act 5 of 2001. Amendment erroneously
referred to section 94F instead of to 92F].
(3)
If the President refuses leave to appeal in terms of subsection (2),
the party may seek leave from the judge of the Supreme Court to
appeal.
[Section
inserted by section 32 of Act 7 of 2005].”
In
terms of section 92F(1), an appeal from the Labour Court lies to the
Supreme Court on a point of law.
Section
92F(2) requires the appellant to seek leave to appeal from the Labour
Court; and
Section
92F(3) prescribes that the prospective appellant who is denied such
leave approaches a judge of the Supreme Court.
The
application before a judge of this Court is not an appeal against the
refusal of the Labour Court.
It
is a legislative device that provides access to the Supreme Court to
an aggrieved litigant. It allows a higher judicial officer to
reconsider the grievance with an un-jaundiced eye.
The
effect of a dismissal of an application for condonation for leave to
appeal is to deny the applicant access to the Supreme Court.
The
court a
quo
dismissed the only application that would have opened the applicant's
way to this Court.
In
the circumstances, it became legally impossible for the applicant to
seek leave from the court a quo. The import of the dismissal was to
refuse the applicant leave to appeal to this Court.
The
refusal, by operation of law, therefore, activated section 93(F) of
the Labour Act.
In
terms of Rule 60(2) of the Supreme Court Rules 2018, the applicant
had, as at the date of the refusal (23 February 2018), 15 days within
which to seek leave to appeal from a judge of this Court.
Instead,
for a period of three years, it went on a wild goose chase, in which
it mounted five useless applications, which clearly wasted valuable
judicial time.
I,
respectfully, agree with the suggestion by MAVANGIRA JA in the former
case involving the applicant and the respondents, supra,
that the proper course of action was for the applicant to seek leave
to appeal before a judge of this Court once the condonation
application was refused.
It
would be absurd to require the applicant to seek leave to appeal
against the dismissal and require the Supreme Court to determine
whether condonation was properly refused or not. Such a circuitous
route to appeal the substantive judgment could not have been in the
contemplation of the Legislature, which amongst other things,
requires that Labour matters be completed inexpensively and timeously
with minimum regard to formalism.
In
the circumstances, I agree with Mr Ndlovu,
that the composite application for condonation and leave to appeal
against the substantive review judgment is properly before me.
The
first preliminary point, therefore, ought to be dismissed.
The
second preliminary point attacks the propriety of the sole ground of
appeal, which reads as follows:
“The
court a
quo
erred and misdirected itself in finding that the disciplinary
committee was improperly constituted.”
The
relief sought is the success of the appeal with costs, the setting
aside of the judgment a
quo
and its substitution with the dismissal of the application for
review.
I
agree with Mr Mapuranga
that the ground of appeal does not particularize the basis for the
complaint. It is unclear whether the ground attacks a factual finding
or a legal finding.
In
my view, the ground of appeal is incomplete and therefore vague.
It
falls squarely into the category of defective grounds of appeal that
are bad at law, which in the words of LEACH J in Sonyongo
v Minister of Law and Order
1996 (4) SA 384 at 385F:
“specify
the findings of fact or rulings of law appealed against so vaguely as
to be of no value either to the Court or to the respondent, or if
they, in general, fail to specify clearly and in unambiguous terms
exactly what case the respondent must be prepared to meet.”
Indeed,
as pertinently observed by MAKONI JA in Mahommed
v Kashiri
SC85/19 at p9 of the cyclostyled judgment:
“The
applicant's first ground of appeal simply complains that the court
below was wrong in making a particular finding and should have
instead made a different finding. The basis of the attack is not
stated…Further, the ground of appeal does not indicate why the
finding of fact or ruling is to be criticized as wrong, is said to be
wrong.”
And
as it was so eloquently pitched by GARWE JA in
Zimbabwe Open University v Ndekwere
SC52/19 at para [41]:
“The
gross aberration on the facts was not articulated. It remained a bald
allegation impugning findings of fact. It did not state how and in
what way the arbitrator grossly erred in reaching the conclusion that
was sought to be impugned. In these circumstances, it remained an
attack against a simple finding of fact and, clearly, does not raise
any issue of law.”
All
the above sentiments apply to the sole ground of appeal to be raised
by the applicant on appeal.
The
defective ground of appeal renders the application, before me, a
nullity.
It
is trite that a nullity cannot be condoned or amended. See Yunus
Ahmed v Docking
Station Safaris (Pvt) Ltd t/a CC Sales
SC70/18 at p4;
Robert
Dombodzvuku v CMED (Pvt) Ltd
SC31/12 at p5; and S
v Jack
1990 (2) ZLR 166 (S) at 167G.
The
composite application that seeks condonation and leave to appeal
would have been properly before me but for the defective and
irredeemable ground of appeal embodied in the draft notice of appeal.
Resultantly,
the fatally defective notice of appeal renders the present
application a nullity.
In
the circumstances, I cannot delve into the merits of the composite
application. The application ought, therefore, to be struck off the
roll.
Costs
In
each of the preceding applications, the applicant has been mulcted
with an adverse order of costs either on the ordinary scale or on the
higher scale.
Mr
Mapuranga
prayed for costs on a higher scale. In the opposing affidavit, the
respondents sought costs de
bonis propriis
against Mr Ndudzo, the erstwhile legal practitioner of the appellant.
In
its answering affidavit, the applicant defended Mr Ndudzo's
admitted failure to appreciate the relevant provisions of the Supreme
Court Rules, 2018.
In
his written and oral submissions Mr Mapuranga
did not persist with a personal costs order against Mr Ndudzo.
While
the applicant's erstwhile legal practitioners have by their lack of
diligence been the primary cause of the applicant's misery, there
is a limit beyond which it can be absolved from the sins of its legal
practitioners. See Salooje
& Anor NNO v Minister of Community Development
1965 (2) 2 SA 135 (A) at 141C-E and MM
Pretorious (Pvt) Ltd & Anor v Mutyambizi
SC39/12 at p4.
The
applicant and its legal practitioners have had a period of three
years to perfect its sole ground of appeal. Instead, all they have
done is to put the two respondents out of pocket with procedurally
defective applications.
I
would have granted costs de
bonis propriis
against Mr Ndudzo, had Mr Mapuranga
sought them.
I
consider his lack of diligence in drafting the sole ground of appeal
to be totally unacceptable.
I,
however, do not agree with Mr Mapuranga
that this is an appropriate case to mulct the applicant with an
adverse costs order on the scale of legal practitioner and client.
This
is because the applicant has not acted mala
fide
but in the genuine, though mistaken belief that the application was
properly before me.
I
will, therefore, make an order of costs against the applicant on the
ordinary scale.
Disposition
Accordingly,
it is ordered that:
1.
The application be and is hereby struck off the roll.
2.
The applicant shall pay the respondents costs on the ordinary scale.
Mutamangira
& Associates,
the applicant's legal practitioners
Chambati
Mataka & Makonese,
respondents legal practitioners
