MALABA
DCJ: This
is an appeal against the judgment of the Labour Court upholding the
decision of the appeals officer to dismiss the appellant from
employment with the respondent.
At
the beginning of the hearing, Mr Mpofu
who appears for the respondent raised two points in
limine:
Firstly,
he 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 [Cap.
28:11]
(“the Act”) 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.
The
second point taken was that the grounds of appeal do not raise
questions of law as required by section 92F of the Act.
The
preliminary points were contested by Mr Zhou
on behalf of the appellant.
Section
92F of the Labour Act [Cap.
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 Marcy 2011.
Rule
5 of the Supreme Court (Miscellaneous Appeals and References) Rules
1975 (“the Rules) 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 Act and
therefore a nullity.
Mr
Zhou
argued that Rule 5 is not made subject to the provisions of any other
enactment. Accordingly it is not subject to the provisions of the
Labour Act.
Rule
5 of the Rules 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.”
Mr
Zhou
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.
Mr
Zhou
said an absurdity is created which results in all appeals from the
Labour Court of necessity being out of time.
The
interpretation by Mr Zhou
of Rule 36 of the Labour Court Rules and section 92F(2) as read with
Rule 4 and 5 of the Rules 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, 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
Rules 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 Act is to
prevent appeals not based on questions of law getting to the Supreme
Court.
The
right to appeal given by section 92F(1) 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.
Mr
Zhou
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 para (a) of s 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 Rules 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) at 418, 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 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.
Having
come to the conclusion that there is no appeal before the Court, it
became unnecessary to decide whether the grounds of appeal in the
notice of appeal filed before leave to appeal was granted raise
questions of law as required by section 92F of the Act.
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.
ZIYAMBI
JA: I
agree
OMERJEE
AJA: I
agree
Mhiribidi,
Ngarava & Moyo,
applicant's legal practitioners
Kantor
& Immerman,
respondent's legal practitioners
