IN
CHAMBERS
1.
MAVANGIRA
JA: This
is an application that is headed “Chamber Application for
Condonation of Late Filing of Application for Leave to Appeal in
terms of Rule 61 of the Supreme Court of Zimbabwe Rules
2018.”
Background
2.
The respondents were employed by the applicant. On 14 June 2016 they
were brought before a disciplinary committee on allegations of
misconduct. They were found guilty. This culminated in their
discharge from employment on 14 July 2016.
3.
Aggrieved by the decision the respondents filed with the Labour Court
(the court a
quo)
an application for review of the proceedings. The court a
quo
set aside the dismissal of the respondents. It remitted the matter
for a rehearing before “a properly constituted disciplinary
committee.” It also ordered that the respondents “revert to the
status
quo ante
which was suspension pending the disciplinary hearing.”
4.
Aggrieved by the decision of the court a
quo,
the
applicant sought the court a
quo's
leave to appeal against its decision to this Court. On 17 August 2018
the court a
quo
dismissed
the application for leave to appeal. On 28 August 2018 the applicant
filed with the Supreme Court a chamber application for leave to
appeal, its right to do so deriving from section 92F(3) of the Labour
Act [Chapter 28:01]. The application was set down for hearing on 19
October 2018 but was on that date struck off the roll.
5.
On 5 April 2019 this application was filed. The respondents opposed
it. The matter was set down for hearing on 26 July 2019 but was only
eventually heard on 20 August 2019.
THIS
APPLICATION
Preliminary
Issue
6.
At the onset of proceedings Mr Kachambwa,
for
the respondents, raised what he termed a composite preliminary point
to the effect that the matter was not properly before the court and
must be struck off the roll with costs.
7.
Mr Kachambwa
submitted that Rule 61 of the Rules of this Court in terms of which
the applicant has purported to bring this application is inapplicable
in this matter as the rule only relates to applications for
condonation of failure to note an appeal timeously and extension of
time for instituting the appeal. He submitted that Rule
61
relates to situations where leave to appeal (where necessary) would
have been granted in terms of Rule
60
and a party fails to file its notice of appeal within the time frame
stipulated in Rule
60(2).
Such a party would then have recourse to Rule
61
and make an application in which it shows special circumstances why
its failure should be condoned and extension of time granted.
8.
Mr Kachambwa
further
submitted that the applicant ought to have proceeded in terms of the
relevant provisions in Part VI of the Rules. He also made reference
to Part VII headed “Miscellaneous Appeals and References” with
particular emphasis on Rule
64
which provides that in the case of a lacuna
the provisions of Part VI shall apply.
9.
The second aspect of the preliminary point was that the applicant's
founding papers do not set out factual averments for motivation of
extension of time thereby compounding the impropriety of the
application.
10.
Mr Sithole
on the other hand submitted that the application is properly made in
terms of Rule
61
and is properly before the court. He submitted that Rule
61
provides for a “composite or in-series” application and is not
only meant for situations where leave to appeal has been granted. He
further submitted that what the applicant seeks from this Court in
this application is “condonation and extension of time to seek
leave to appeal.”
11.
If Rule
61
is inapplicable as contended on behalf of the respondents then this
application ought to be struck off the roll as the court would have
no jurisdictional basis on which to relate to it on the merits.
Analysis
12.
Rule
61
provides:
“Applications
for extension of time to appeal
61.
Save where it is expressly or by necessary implication prohibited by
the enactment concerned, a judge may, if special circumstances are
shown by way of an application in writing, condone the late noting of
the appeal and extend the time laid down, whether by Rule
60
or by the enactment concerned, for instituting an appeal.”
13.
The context of Rule
61
is as a sequel to Rule
60
which reads:
“Time
within which notice to be given
60(1)
Subject to the provisions of Rule
61
and the enactment under which the appeal is lodged, a notice of
appeal shall be delivered and filed in accordance with the provisions
of Rule
59
within 15 days of the date of the decision appealed against.
(2)
An appeal from a decision of the Labour Court in terms of section 92F
of the Labour Act [Chapter 28:01] shall be delivered and filed with a
registrar, within 15 days from the grant of leave to appeal by the
Labour Court or, where such leave is refused, within 15 days from the
grant of leave by a judge:
Provided
that where
leave to appeal is refused by the Labour Court, the applicant shall
apply for leave to appeal to a judge within ten days of the refusal
to grant leave.”
14.
The right to make an application pursuant to the above quoted proviso
to Rule
60(2)
derives or emanates from section 92F(3) of the Labour Act which
provides:
“(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 refuses leave to appeal in terms of subsection
(2),
the party may seek leave from the judge of the Supreme Court to
appeal.”
15.
According to the applicant's founding affidavit, the striking off
by this court on 19 October 2018 of the application that had been
timeously filed on 28 August 2018 was by consent of the parties and
it was for the reason that “the appeal record … was not attached
to the application.” That application having been struck off the
roll, the applicant was well within its rights to approach this Court
again as it has done by way of the instant application.
Unfortunately, however, the applicant has approached this court in
terms of Rule
61
as already indicated above.
16.
Rule
61
provides for an application to be made for the court to “condone
late noting of the appeal and extend the time laid down.” There is
no reference to condonation of failure to apply for leave to appeal
timeously. Neither is there any provision in Part VII under which
Rule
61
falls, that provides for such. However, Rule
64
(in Part VII) provides:
“In
the event of any casus omissus in this Part, the provisions of Part
VI shall apply, mutatis mutandis.”
17.
In Part VI which is headed “Applications for leave to appeal or
extension of time to appeal” Rule
43(3)
provides as follows:
“An
application for condonation of non-compliance with the rules and for
extension of time in which to appeal shall have attached to it a
notice of appeal containing the matters required in terms of subrule
(1) of Rule 37
and an affidavit setting out the reasons why the appeal was not
entered in time or
leave to appeal was not applied for in time.
Counsel may set out any relevant facts in a statement. Where
such application is in relation to a matter in which leave to appeal
is necessary the application shall,
in addition, comply with the requirements of subrule
(2).”
18.
Subrule
(2)
reads:
“An
application for leave to appeal shall set out the date on which the
High Court refused leave to appeal and shall have attached to it –
(a)…
(b)…
(c)…”
19.
Rule 43(3) of Part VI applying herein mutatis
mutandis
would provide for the making of an application for condonation of
non-compliance with the proviso to Rule
60(2),
viz,
the failure to apply for leave to a judge of this Court within ten
days of the refusal to grant leave by a judge of the court a
quo.
20.
Subrule
(8) of Rule 43
is also pertinent in its provision that:
“If
leave to appeal or condonation and extension of time to appeal is
granted, the appeal shall be deemed to have been instituted in
accordance with the notice of appeal filed in the application on the
date on which leave is granted, unless the judge otherwise orders.”
21.
I might comment in passing on the draft notice of appeal filed
together with the application. It seeks to appeal against the
judgment of the court a
quo
dismissing
the applicant's application for “upliftment of bar and
condonation of late filing of an application for leave to appeal to
the Supreme Court” (sic). The ultimate relief sought, besides being
improperly drafted, is for the setting aside of the order refusing
leave to appeal and purportedly the substitution thereof with an
order that reads:
“The
application for upliftment of bar and condonation of filing of
application for leave to appeal to the Supreme Court be and is hereby
granted.” (sic)
22.
The notice of appeal is therefore not meant to institute an appeal
against the decision of the court a
quo
in the main matter for which leave to appeal was originally sought
before court a
quo.
The applicant seems to labour under a misconception or probably
confusion as to the course it ought to follow.
23.
In essence the applicant seeks before a judge of this Court
condonation for its non-compliance with Rule
60
upon which a judge of this Court will then allow it to file its
application for leave to appeal within five days of this court's
order. This accords not only with Mr Sithole's
submission cited earlier but with the terms of the draft order that
it prays for in this application which reads as follows:
“IT
IS ORDERED THAT:
1.
The non-compliance with Rule 60 of the Supreme Court Rules be and is
hereby condoned.
2.
Application for condonation of late filing of application for leave
to appeal in terms of Rule 61 of the Supreme Court Rules be and is
hereby granted.
3.
The applicant is to file its application for leave to appeal within 5
days of this order.
4.
That there be no order as to costs.”
24.
The applicant seems unclear as to the correct procedure to be
followed. Its application for leave to appeal having been dismissed
by the court a
quo,
it then applied to this Court for the leave that it supposedly
craved. Its first application to this Court was allegedly timeously
made but unfortunately for the applicant it was struck off the roll.
It then filed this application. The “disconnect” now appears from
the relief sought herein. The applicant now seeks to go back to the
court a
quo
to seek the very leave that section
92F(3)
and the proviso to Rule 60(2)
require that it seeks from this Court.
25.
In
University of Zimbabwe v Jirira & Another
18-SC-012 BHUNU JA aptly stated:
“In
terms of section
92F(3) of the Labour Act [Chapter 38:01],
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 fresh application
before him/her.”
26.
On a view of the applicable law as provided in section
92F
as well as Rule
60(2)
it is clear that when a party seeks before a judge of this Court
leave to appeal, such leave is for the purpose of appealing against
the decision in the main matter and not against the refusal to grant
leave. This court cannot possibly be asked to grant leave to the
applicant for the applicant to go back to the court a
quo
for the purposes of seeking leave to appeal as that would be an
absurd outcome.
The
application in
casu
is fundamentally flawed. It is not properly before me as it is
predicated on an inapplicable rule and ought to be struck off the
roll for that reason.
The
applicant ought to have been guided by Rule
43(3)
and ought to have filed a composite application for firstly,
condonation and extension of time within which to apply for leave to
appeal to a judge of the Supreme Court and secondly, leave to appeal.
27.
In its opposing papers the respondent's stance was that the
application was devoid of merit and ought to be dismissed with costs
on the higher scale. In oral submissions at the hearing at which only
the preliminary point was argued Mr Kachambwa
urged the court to strike the matter off the roll with an order of
costs in favour of the respondent. The preliminary point that was
raised at the hearing had not been raised in the opposing papers. It
is trite that costs will follow the cause.
However,
I am unable to find any justification for the exercise of my
discretion that would justify an award of costs on the higher scale
in favour of the respondent.
Rule
61
being inapplicable, this application is not properly before me.
It
must be and it is hereby struck off the roll with costs on the
ordinary scale.
Mutamangira
& Associates, applicant's legal practitioners
Chambati,
Mataka & Makonese, respondents legal practitioners
