Firstly,
counsel for the respondent argued that the Notice of Appeal against the
judgment delivered on 21 February 2011 does not comply with the provisions of section
92F of the Labour Act [Chapter 28:11] and is therefore a nullity.
The
Notice of Appeal was filed by the appellant on 9 March 2011. Leave to
appeal to the Supreme Court was granted by the Labour Court on 2 June 2011….,.
Section
92F of the Labour Act [Chapter 28:01] provides that:
“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 leave to appeal that decision.
3.
If the President refused leave to appeal in terms of subsection (2), the party
may seek leave from the judge of the Supreme Court to Appeal.”
On
21 February 2011, the Labour Court gave a judgment against which the appellant
sought to institute an appeal on 9 March 2011.
Rule
5 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975
provides that an appeal against a decision of the Labour Court shall be
instituted within fifteen days of the decision being given. The Notice of Appeal
must be delivered to all interested parties and filed with the Registrar of the
Supreme Court within fifteen days of the decision appealed against being given.
The
Notice of Appeal delivered and filed by the appellant was filed before leave to
appeal was granted. Leave to appeal was granted by the Labour Court on 2
June 2011. The respondent's heads of argument drew the attention of the
appellant's legal practitioner to the fact that the purported Notice of Appeal
did not comply with section 92F(2) of the Labour Act [Chapter 28:01] and
therefore a nullity.
Counsel
for the appellant argued that Rule 5 of the Supreme Court (Miscellaneous
Appeals and References) Rules, 1975 is not made subject to the provisions of
any other enactment. Accordingly, it is not subject to the provisions of
the Labour Act [Chapter 28:01]. Rule 5 of the Supreme Court (Miscellaneous
Appeals and References) Rules, 1975 provides:
“Subject
to the provisions of Rule 6, a notice shall be delivered and filed in
accordance with the provisions of Rule 4 within fifteen days of the decision
appealed against being given.”
Counel
for the appellant further argued that in terms of the Labour Court Rules
Statutory Instrument 59 of 2006, the application for leave to appeal to the
Supreme Court may be made within thirty days after the date on which the
judgment appealed against was given. An application for leave to appeal
can validly be made after the dies induciae of 15
days has expired. Counsel for the appellant said an absurdity is created
which results in all appeals from the Labour Court, of necessity, being out of
time.
The
interpretation by counsel for the appellant of Rule 36 of the Labour Court
Rules, S.I.59 of 2006 and section 92F(2) of the Labour Act [Chapter 28:01] as
read with Rule 4 and 5 of the Supreme Court (Miscellaneous Appeals and
References) Rules, 1975 would mean that all the provisions must be complied
with before an application for leave to appeal is granted. The fact that
in terms of Rule 36 of the Labour Court Rules, S.I.59 of 2006, leave to appeal
may be granted after the expiry of the time within which to note an appeal
against the judgment as required by Rule 5 of the Supreme Court (Miscellaneous
Appeals and References) Rules, 1975 does not mean that a Notice of Appeal which
precedes the granting of leave to appeal has been validly delivered and filed.
The
purpose of requiring leave before noting an appeal to be given by the President
of the Labour Court, or upon refusal, by the judge of the Supreme Court,
in terms of section 92F(2) of the Labour Act [Chapter 28:01] is to prevent
appeals not based on questions of law getting to the Supreme Court. The
right to appeal given by section 92F(1) of the Labour Act [Chapter 28:01] is a
limited right. The exercise of it is made conditional upon leave being
granted.
A
wish to exercise the right to appeal remains in the mind of the person
intending to appeal. As long as it is not communicated to the President of
the Labour Court who made the decision, or a judge of the Supreme Court upon
refusal of leave by the latter, it cannot be granted or refused. When
communicated by way of application for leave to appeal, the party is seeking
the right to lodge the appeal. The law interposes the President of the
Labour Court between the wish to appeal and the action to lodge the
appeal. The authority, when granted, is prospective rather than
retrospective. In other words, it could not be known whether an appeal is
open to him until the special leave is given by the President of the Labour
Court, or, upon refusal by him or her, by a judge of the Supreme Court.
Counsel
for the appellant submitted that in the case of Holt v Brook
1959 (3) SA 803, the Court held that where leave to appeal is necessary the
notice required by paragraph (a) of section 61 of Act 39 of 1896 (N) could
properly be filed and served before leave to appeal was granted.
That
position, with respect, would be inconsistent with our law. The court does
not accept it as applicable in the present case. According to our law,
authority must be sought from the President of the Labour Court for leave to
exercise the right to appeal. Until that authority is granted, there
cannot be said to be an appeal pending before the Supreme Court even though a
purported Notice of Appeal has been filed. It is important to relate the
requirement for an application for leave to appeal to the purposes
thereof. These are for the decision to be made on the questions whether
the grounds of appeal relate to questions of law and the existence of prospects
of success on appeal. A Notice of Appeal required by Rule 5 of the Supreme
Court (Miscellaneous Appeals and References) Rules, 1975 contains matters
expressive of more than an intention to appeal.
A
validly filed and delivered Notice of Appeal has the effect of entrenching the
appeal.
In
Jensen v Acavalos 1993 (1) ZLR 216 (S), the appropriate
remedy for having a proper Notice of Appeal placed before the Court was
stated. The procedure involves an application for an extension of time
within which to note an appeal and condonation for late noting of appeal made
to a judge of the Supreme Court. See Matanhire v BP & Shell
Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).
As
no valid Notice of Appeal was filed and delivered after the grant of leave to
appeal by the Labour Court on 2 June 2011, there is therefore no appeal before
the Supreme Court.
In
Church of the Province of Central Africa v Kunonga & Anor
2008 (1) ZLR 413 (S)…, the Court dealt with the effect of a notice of appeal
not complying with the statutory requirements as follows:
“In
my view, a distinction has to be made between those matters where the notice of
appeal is invalid by reason of failure to comply with the provisions of the
statutes, such as section 43 of the High Court Act, and a situation where a
notice of appeal is invalid by reason of failure to comply with the rules of
the Supreme Court. Where a notice of appeal does not comply with the
provisions of the Act of Parliament, the court has no discretion in the matter
and the defect is incurable. In a situation like that, it is open to the
Court, and indeed a judge of the Supreme Court, to order that the appeal is a
nullity and is incurably defective.”
Without
an application for an extension of time within which to institute the appeal
and for condonation of non-compliance with Rule 5 of the Supreme Court
(Miscellaneous Appeals and References) Rules, 1975 no appeal has been
noted. The matter must be struck off the roll. It was not difficult
for the appellant to regularise the situation by invoking the remedy provided
for the benefit of litigants in his position….,.
In
the circumstances, the following order is made:
1.
The point in limine be and is hereby upheld.
2.
The matter is struck off the roll with costs.
