Before
GUVAVA JA,
in chambers in terms of Rule 5 of the Rules of the Supreme Court,
1964.
This
is a chamber application for leave to appeal against the decision of
the Labour Court in terms of section 92F of the Labour Act [Chapter
28:01].
After
hearing arguments from both parties on the preliminary points raised
I dismissed the application with costs. The applicant has requested
written reasons for the decision. These are they.
The
brief facts of the matter may be summarized as follows.
The
applicant was employed by the respondent as a sales representative.
The respondent alleged that on 20 September 2010, the applicant
requested and was given 40 cases of soft drink cans in order to
replace a bad batch which had been delivered to Food World, a shop
based along Cameron Street.
The
respondent further alleged that the 40 cases were never delivered to
Food World.
Based
on these allegations, the applicant was charged with theft under
section 1(1) of the respondent's Code of Conduct.
Following
a disciplinary hearing the applicant was found guilty of theft and
dismissed from employment.
The
main evidence against the applicant was a document which was
allegedly signed by an employee from Food World acknowledging receipt
of 21 cases instead of 40.
During
the disciplinary hearing the Food World employee, who had signed for
the 21 cases, was made to sign five times to check his signature
against that on the delivery note in question. The members of the
Disciplinary Committee came to the conclusion that the signatures did
not match and consequently that the drinks were never delivered.
Based
on that conclusion the applicant was found guilty of theft.
The
applicant was aggrieved by the decision and appealed to the Labour
Court. On appeal to the Labour Court, the disputed signatures were
sent to a handwriting expert.
The
expert confirmed the finding before the Disciplinary Committee that
the signatures which had been taken during the hearing did not match
the signature of the witness.
The
appeal was thus dismissed.
The
applicant applied for leave to appeal to the Supreme Court which
leave was denied. The applicant then filed the present application.
The
respondent opposed the application and in its notice of opposition
raised six preliminary points. It was argued on behalf of the
respondent:
(i)
Firstly, that the application was fatally defective as it did not
contain a record of the proceedings before the Labour Court.
(ii)
Secondly, the application did not contain a prayer for the relief
sought by the applicant.
(iii)
Thirdly, the application did not conform with the form for such
applications as there was no document setting out the grounds
supporting the granting of leave.
(iv)
Fourthly, the application did not contain grounds that can support
the relief sought.
(v)
Fifthly, the application did not state the date when the Labour Court
refused to grant the applicant leave to appeal as required by the
rules.
(vi)
Sixthly, the affidavit filed in support of the application was
defective; and, lastly
(vii)
The applicant had cited a non existent respondent.
At
the hearing the respondent submitted that the application should be
dismissed due to the following points:
1.
Defective Relief Sought
The
applicant's prayer in the draft Notice of Appeal was defective as
it was incomplete. The relief sought was drafted as follows:
“Wherefore
the appellant prays that the appeal be allowed with costs and the
decision of the court a quo to be set aside and it be substituted as
follows:
'1.
The appellant be and is hereby reinstated with full benefits and back
pay with effect from the date of unlawful dismissal.
2.
In the event that the reinstatement is no longer possible, either
party is entitled to approach the court for quantification of damages
and back pays.'”
It
has been emphasized in several judgments of this court that the rules
require that that prayer in the notice of appeal must exact in
nature.
This
matter came to the Labour Court as an appeal from a determination of
the Disciplinary Committee. This application is to appeal against the
decision of the Labour Court. In seeking the setting aside of the
decision of the court a quo, the applicant neglected to address what
should happen to the decision of the disciplinary hearing.
In
casu, for the avoidance of doubt the prayer ought to have read as
follows:
“Appellant
prays that the appeal be allowed with costs and the decision of the
court a quo to be set aside and substituted as follows:
'1.
Appeal be and is hereby allowed….
2.
The decision of the Workers Council is set aside.
3.
The appellant be and is hereby reinstated…”
In
the case of Ndlovu & Anor v Ndlovu & Anor1
MALABA JA, as he was then, held that:
“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.” (My emphasis)
In
this case the applicant not only failed to pray for the success of
the instant appeal but also failed to highlight what order he seeks
to substitute in the event that the appeal is allowed.
In
the case of Chamboko v Dorowa Minerals Limited SC26/15 this court
stated as follows:
“In
any case an applicant for leave to appeal must file a notice of
appeal that conforms to the requirements of the rules of court at the
time the application for leave to appeal is made. Where the notice of
appeal filed is fatally defective, there is no valid application.”
2.
Failure to cite the correct respondent
The
respondent highlighted that it has been cited as 'Delta Beverages
Limited' as opposed to 'Delta Beverages (Private) Limited'.
Applicant
concedes this point in his answering papers.
In
Gariya Safaris (Pvt) Ltd v Van Wyk2
it was stated as follows:
“A
summons has legal force and effect when it is issued by the plaintiff
against an existing legal or natural person. If there is no legal or
natural person answering to the names written in the summons as being
those of the defendant, the summons is null and void ab initio.”
In
this case the applicant cited a non-existent respondent. Thus in the
same vein the application was a nullity.
3.
Failure to attach the record of the court a quo
Counsel
for the respondent contended that the failure by the applicant to
attach the record of the court a quo to the present application was
fatal.
Although
this is not a requirement in terms of the Supreme Court
(Miscellaneous Appeals and References) Rules, 1975 as the matter is
an appeal from the Labour Court; in this case the court in dealing
with the matter in a previous application had directed that the
record of proceedings should form part of the record.
In
spite of such direction the applicant failed to do so.
This
was fatal to the application: see Masenga v Guthrie 2002 (2) ZLR 321
at 327.
Although
it is generally accepted that dismissing matters on technicalities is
not desirable the defects in the present application were of such a
nature that they went to the root of the application.
Where
the court is presented with a defective application the applicant
must seek the indulgence of the court in order for the irregularities
to be condoned.
It
has been stated in numerous decisions of this court that legal
practitioners are officers of the court charged with exercising due
care in the execution of their roles.
The
court is inundated with pleas of mercy where legal practitioners have
not carried out their work with due diligence.
There
comes a time when the court, in the exercise of its discretion, must
decide that that there is a limit to which such indulgences can be
granted to an applicant and such applications will be dismissed where
they fail to comply with the rules of the court.
Striking
the matter off from the roll does not finalize the matter but merely
means the matter will be filed again thus clogging the court system
with recycled cases.
In
my view there is a limit to which the court will indulge a litigant,
as there must be finality in litigation.
This
is so especially in circumstances where a matter has been brought
before the court previously and an indulgence granted by the court
and an interim order given, as in this case, directing that certain
things be done yet the matter is filed again without complying with
the courts direction.
In
this particular case the parties had specifically agreed that this
application would be placed before me to ensure that what had been
agreed to would be done.
Despite
that undertaking the application was filed without doing what had
been agreed to and directed by the court.
In
most cases, the courts refrain from visiting the errors of a
practitioner on the client however as McNALLY JA stated in the case
of Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290C-E:
“It
is a policy of the law that there should be finality to litigation.
On the other hand one does not want to do injustice to litigation but
it must be observed that in recent years applications for
condonation, for leave to apply or appeal out of time, and for other
relief arising out of delays either by the individual or his lawyer
have rocketed in numbers. We are bombarded with excuses for failure
to act. We are beginning to hear more appeals for mercy than justice.
Incompetence has become a growth industry...
The
time has come to remind the legal profession of the old adage:
vigilantibus non dormientibus jura subveniunt, roughly translated;
the law will help the vigilant but not the sluggard.” (Own
emphasis)
Vigilance
applies not only with respect to time taken to file process but
incorporates careful observation, due care, prudence, attention to
detail and a conscientiousness that exemplifies diligence on
practitioners part in drafting documents for a litigant and obeying
court orders.
All
these factors were lacking in this application.
It
was for the above reasons that I upheld the points in limine and
dismissed the application with costs.
Matsikidze
& Mucheche, applicant's legal practitioners
Dube
Manikai & Hwacha, respondent's legal practitioners
1.
SC133/02
2.
1996 (2) ZLR 246 (H)
