IN
CHAMBERS
BHUNU
JA: This
is a chamber application for leave to appeal against the judgment of
the Labour Court in terms of Rule 5(2) of the Supreme Court
(Miscellaneous Appeals and References) Rules, 1975.
The
applicant is a tertiary educational institution incorporated as such
under the University of Zimbabwe Act [Chapter
25:16].
Both
respondents are its former workers who were employed as research
fellows at its Institute of Development Studies. They were dismissed
from employment by the disciplinary Tribunal on allegations of
misconduct. They are alleged to have wilfully refused to obey a
lawful order to be redeployed from the Institute of Development
Studies offices to the University campus.
Aggrieved
by their dismissal from employment they approached the Labour Officer
complaining of unfair dismissal. The Labour Officer in turn referred
their grievance for arbitration. The arbitrator ruled in their favour
and made an award of reinstatement and in the alternative damages in
lieu
of reinstatement.
Dissatisfied
with the Arbitration award, the applicant appealed to the Labour
Court without success. Unhappy with the decision of the Labour Court,
the applicant sought leave to appeal to this court. On 5 April 2013
the Labour Court granted the applicant leave to appeal to this Court.
The
applicant did not however reinstate the respondent as ordered by both
the Arbitrator and the Labour Court. As the result the respondents
approached the Arbitrator for quantification of damages in
lieu
of reinstatement. The Arbitrator assessed damages in the amounts of
US$156,852.13 and US$134,362. 00, respectively.
Aggrieved
by the quantification award, the applicant once again appealed
against that award to the Labour Court.
Despite
the appeal, the respondents proceeded to register the award with the
High Court for enforcement. A writ of execution and attachment of the
applicant's property was subsequently issued.
The
applicant made an urgent application for stay of execution without
success. It then successfully appealed to this court for stay of
execution pending appeal under judgment number SC6/12.
The
applicant's appeal against the quantification award was
subsequently dismissed by the Labour Court.
Its
complaint is that CHIVIZHE J granted the application for dismissal of
the appeal without a formal hearing of the appeal. They allege that
despite numerous requests the honourable judge failed to provide the
applicant with reasons for judgment resulting in the lapse of time
stipulated of the intended appeal.
It
therefore became necessary to apply for condonation and extension of
time to file an application for leave to apply to this Court.
Both
parties filed heads of argument.
The
applicant now alleges that while they were waiting for the set down
date of hearing they were surprised to receive a written judgment by
HOVE J dismissing the application for leave to appeal to this Court.
It
is not clear to me but it appears that the matter was subsequently
placed before the same judge who then properly heard the application
and dismissed the applicant's claim under judgment LCH/H/472/2011
at page 56 of the record of proceedings.
It
is this judgment which prompted this application.
In
terms section 92F(3) of the Labour Act [Chapter
28:01],
where a judge of the Labour Court refuses to grant leave to appeal,
the applicant may seek leave from a judge of this Court.
When
a judge of the Supreme Court sits in chambers to decide the
application for leave to appeal he does not treat the application as
an appeal against the refusal to grant leave by the court a
quo.
He simply decides the matter on the merits as if it was a fresh
application before him/her.
For
that reason while he may consider the criticisms levelled against the
judge in the court a
quo,
these are not overriding considerations because he makes his own
independent fresh determination on the basis of the papers and
arguments placed before him/her.
I
now turn to consider the application for leave to appeal to this
Court on the merits.
An
application for leave to appeal to this Court is firmly grounded on
the applicant's prospects of success on appeal.
In
terms of section 92F of the Act, appeals from the Labour Court only
lie to this Court on a point of law.
In
that regard the first question for consideration is whether the
applicant's grounds of appeal raise a point of law.
The
grounds of appeal essentially raises the question whether the
applicant was subjected to a fair trial when CHIVIZHE J issued an
order under case number LC/H/145/11 without giving reasons for the
order which it has branded a judgment.
The
order is dated 31 October 2012 and it reads:
“IN
THE LABOUR COURT OF ZIMBABWE
LC/H/145/11
In
the matter between:
KWANELE
JIRIRA & ANOTHER: Applicants
Vs
UNIVERSITY
OF ZIMBABWE: Respondents
Before
the Honourable B T Chivizhe, President
(IN
CHAMBERS)
Whereupon
after reading documents filed of record
IT
IS ORDERED THAT
The
application for dismissal of appeal in terms of Rule 19(3)(a) of the
Labour Court Rules be and is hereby granted.”
The
above order is clearly not a judgment but an order given by the
learned judge a
quo
sitting in chambers.
This
is so because it does not bear a judgment number or reasons for
judgment. It cites no legal representatives signifying that none were
heard although both parties had legal representation. This is clearly
a default judgment.
It
is not correct for the applicant to say in its founding affidavit
that the learned judge did not give reasons for its judgment. This is
because in the same breath it confesses that the judgment was given
pursuant to an application for dismissal of its appeal because of its
failure to file heads of argument timeously.
It
is therefore plain that the applicant's appeal was dismissed for
want of compliance with the Rules.
Nowhere
in its grounds of appeal does the applicant allege that it filed its
heads of argument timeously.
In
my view, the applicant having failed to file its heads of argument
within the prescribed time limit, it ought to have applied for
rescission of judgment in terms of section 92C.
The
section confers a wide discretion on a judge of the Labour Court to
rescind his own decisions including those given in the absence of a
party or in error. The section provides as follows:
“(1)
Subject to this section, the Labour Court may, on application,
rescind or vary any determination or order —
(a)
which it made in the absence of the party against whom it was made;
or
(b)
which the Labour Court is satisfied is void or was obtained by fraud
or a mistake common to the parties; or
(c)
in order to correct any patent error.
(2)
The Labour Court shall not exercise the powers conferred by
subsection (1) –
(a)
except upon notice to all the parties affected by the determination
or order concerned; or
(b)
in respect of any determination or order which is the subject of a
pending appeal or review.
(3)
Where an application has been made to the Labour Court to rescind or
vary any determination or order in terms of subsection (1), the
Labour Court may direct that —
(a)
the determination or order shall be carried into execution; or
(b)
execution of the determination or order shall be suspended pending
the decision upon the application; upon such terms as the Labour
Court may fix as to security for the due performance of the
determination or order or any variation thereof.”
That
application ought to have been made simultaneously with an
application for condonation and extension of time within which to
file its heads of argument in terms of Rule 26 which provides that:
“At
any time before or during the hearing of a matter a President or the
Court may —
(a)
direct, authorise or condone a departure from any of these rules,
including an extension of any period specified therein, where the
President or Court is satisfied that the departure is required in the
interests of justice, fairness and equity;
(b)
give such directions as to procedure in respect of any matter not
expressly provided for in these rules as appear to the President of
the Court to be just, expedient and equitable.”
In
terms of Rule 33 the applicant had 30 days within which to make the
above applications for relief in the court a
quo
from
the date it became aware of the so called judgment.
This
it not do.
The
so called judgment it seeks to impugn is dated 31 October 2012. It
only approached this court for relief about two and a half years
later on 15 March 2015.
That
delay in approaching this Court is lengthy and inordinate. It cannot
be the kind of delay occasioned by a party who has the serious
intention to prosecute its appeal.
It
appears to me that this Application was lodged as an afterthought,
simply to circumvent the court a
quo
and throw spanners into the pending execution.
The
applicant could no longer approach the court a
quo
for relief as it was now woefully out of time.
Approaching
this Court was an ingenuous way of evading the natural consequences
of its inordinate delay in approaching the court a
quo
for relief timeously.
The
applicant has not proffered any explanation for the inordinate delay
of more than two and a half years before approaching this Court if it
was sincere in its belief that the relief it seeks resides in this
Court.
In
any case the applicant ought to have exhausted its domestic remedies
before approaching this Court for relief.
For
the foregoing reasons I come to the conclusion that there is
absolutely no merit in this Application; it is accordingly ordered
that the application be and is hereby dismissed with costs.
Ziumbe
& Partners,
applicant's
legal practitioners
Hungwe
& Mandevere,
respondents
legal practitioners
