The applicant was employed by the respondent as a Human
Resources and Training Manager before he was dismissed from employment
following disciplinary proceedings in which he was found guilty of acts of misconduct. The
allegations of the misconduct were that he had applied for, and obtained,
advances of money from a scholarship fund operated by the respondent to cover
three semesters on the pretext that he had two children at the University of
Cape Town in South Africa and Africa University in Zimbabwe who needed school
fees to be paid in foreign currency.
It is common cause that at the time the applicant applied
for, and received, payment of the money he knew that he had no children at the
universities concerned. When it was discovered that the applicant had
misrepresented the fact that he needed the money to pay school fees for
children at the two universities the respondent suspended him. He was
charged with the misconduct of committing conduct inconsistent with the
fulfillment of the express or implied conditions of the contract of employment
and fraud or theft by false pretences. The applicant sought to defend
himself by saying that the payment of the money was on the approval of the
General Manager and the Company Secretary.
He did not appreciate that the gravamen of the charges was
that he had misrepresented to the officials concerned that he had children at
the two universities and obtained their approval as a result of the
misrepresentation.
What the applicant could not deny was that he did not use
the money he had received from the scholarship fund to pay school fees at the
universities because there was no cause for the payment of school fees.
The arbitrator who heard the appeal against the dismissal
of the applicant accepted the argument that the money was paid to the applicant
on the authority of the General Manager. He allowed the appeal. The
respondent appealed to the Labour Court against the arbitral award on the
ground that it was grossly irrational. Judgment in default was given
against the applicant on 28 September 2007.
On 13 August 2010, the applicant made an application to the
Labour Court for rescission of the default judgment. He alleged that he,
or his legal representative, had not been served with a notice of set down of
the appeal for hearing on 28 September 2007. He said he knew of the
default judgment on 27 July 2010. He alleged that he had even filed heads
of argument after that date on the belief that the appeal was still to be set
down for hearing.
In paragraph 6 of the founding affidavit to the application
for rescission of the default judgment, filed on 30 July 2010, the applicant
said:
“6. I am applying for the main matter to be re-set
down since when the matter was set down to be heard, in Mutare, I attended
Court but no heads of argument had been filed.”
The application for rescission of judgment was
opposed.
On 8 December 2010, the application was dismissed by the
Senior President of the Labour Court. The reasons for the decision were
given as being that:
“(i) The delay is
too inordinate;
(ii) There is no explanation why applicant took three years
to file the application for rescission.
(iii) If applicant attended court, as he indicated in his
affidavit, there would have been no reason why the court would enter default
judgment.
(iv) The law does not assist those that slumber and there
must be finality to litigation.”
The applicant said he did not know of the judgment
dismissing the application for rescission of the default judgment until on 23
February 2011. He said he received the reasons for the decision on 20
April 2011. Instead of applying for leave to appeal, he noted an appeal
with the Supreme Court, only to be told by the Registrar that there was no
appeal before the Supreme Court as leave had not been sought from and granted
by the President of the Labour Court who made the decision.
On 20 July 2011, he made an application for leave to
appeal. Leave was refused on the ground that the application for leave was
made out of time with no application for condonation of failure to comply with
the time limit and there were no prospects of success on appeal.
According to Rule 36 of the Labour Court Rules, 2006 the
applicant was required to make an application for leave to appeal within 30
days of the judgment being given on 8 December 2010.
In making the application to the Senior President of the
Labour Court for leave to appeal against the judgment on 27 July, without
seeking condonation and extension of time within which to seek leave, the
applicant overlooked the fact that there was no proper application before the
court a quo. The applicant had lost the
right to seek leave to appeal. As such, the court a quo had no power to consider the application and enter the
verdict of refusal of the application because there were no substantive issues
placed before the court by a void process.
This Court is in the same position as the court a quo.
It cannot grant the applicant leave to appeal in respect of
a matter which is, by operation of the law, no longer appealable. The
applicant's legal incapacity to seek leave from this Court to appeal against
the decision of the Labour Court given on 8 December 2010 continues and has not
been legitimized by the fact that the Senior President of the Labour Court said
her decision on the application was a refusal of leave to appeal as if she had
the power to consider the application in the first place after the expiry of
the 30 days' time limit within which the application had to be made.
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.
In this case, the document filed as a Notice of Appeal is
fatally defective. It does not state the date on which the judgment sought
to be appealed against was given.
Even if the application had been properly before the Court,
it would have been dismissed for lack of prospects of success.
Whichever way one looks at the matter, the admitted facts
proved the acts of misconduct charged against the applicant. The
respondent stated, as the basis of the charges leveled against the applicant,
that it was the belief that he had two children at the University of Cape Town
and Africa University who needed school fees to be paid that induced the
decision to authorize the payment of the money to him. The applicant did not
deny that at the time he made the application for the money, and received
payment of it, he knew that the children were not at the universities. The
children had not been admitted to these institutions of learning to incur
obligations to pay school fees.
It was the misrepresentation of the fact that the children
were students at the universities requiring payment of school fees which
induced the respondent to authorize the payment of the money to the applicant,
ostensibly for the specific purpose of paying school fees for the
children. It was not a defence to the charges of misconduct to say that
the payment of the money was authorized by the General Manager. The same
official made it clear in the letter dated 21 November 2003, inviting the
applicant to attend the disciplinary hearing, that the charges of misconduct
leveled against him arose from the fact that he received the money by
misrepresenting that he had one child on a degree course at Africa University
and another at the University of Cape Town.
The matter is struck off the roll with costs. 