Ernest Ruwizhi v Seedco Limited Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/193/2021
HARARE, 16 OCTOBER, 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/193/2021

HARARE, 16 OCTOBER, 2021		     	     CASE NO. LC/H/APP/332/20

AND 05 NOVEMBER, 2021

In the matter between:

ERNEST RUWIZHI							Applicant

Versus

SEEDCO LIMITED ZIMBABWE						Respondent

Before The Honourable Kachambwa J;

For Applicant:					S. Kuchena (Legal Practitioner)

For Respondent:					H. Muromba (Legal Practitioner)

KACHAMBWA J:

Judgment (Point in limine)

This is an application for condonation for late noting of appeal and not for extension of time within which to appeal as well. The applicant was charged and convicted of two acts of misconduct. A penalty of dismissal was imposed. The acts of misconduct were also reported to the police but the criminal charges did not succeed. The charge was that of conduct inconsistent with the fulfillment of the express or implied conditions of his contract- section 4a of Statutory Instrument 15 of 2006.

The first charge was that the applicant unprocedurally moved in and out of the company premises with ten (10) kilogrammes of wheat. He was supposed to declare it in and out at the security gate. There was no evidence of even verbal declaration. The appellant also chose a security guard from a guard point elsewhere to go with him to pick up the wheat when there was a guard closer to the wheat. Such conduct was held to be inconsistent with the implied or express conditions of his employment.

The second charge was that he had breached the same conditions by unprocedurally issuing wheat to replace wheat that had gone missing as it were. He did this without approval or consultation with his superior. It was done in a manner that raised suspicion.

The applicant appealed unsuccessfully at the workplace. Thereafter he took his matter to the labour officer who declined to take it on the grounds that applicant had to appeal to the Labour court. Applicant was represented by legal counsel. The appeal to the Labour court was supposed to be by the 19th October 2020. The applicant gives his reasons for failure to file in time in paragraphs 7-10 of the founding affidavit. They read;

”(a)	I did however fail to note the appeal by the 19th October 2020. The impediment to filing a proper appeal within the time stated in the rules was due to the fact that I was not aware of the proper procedure that ought to be followed in escalating the matter. In addition, at the time I was also following up on the criminal case that was made against me by the Respondent.

(b)	As a result I then only managed to consult with my undersigned legal practitioners sometime in November 2020 after which they referred the matter to a Labour officer in terms of the Labour (National Employment Code of Conduct) Regulations S.I 15 of 2006. See Annexure C attached hereto.

(c)	However, on the 9th November 2020, the date upon which the matter was supposed to be referred to the Labour officer, it was noted by him that the referral was defective as the matter fell out of the purview of the labour officer and in fact ought to lie with the Labour court.

(d)	Action was immediately taken but however, upon discovering that the 21 day window in which to note an appeal had expired, this application was then prepared and accordingly filed with this honourable court”.

I have taken these paragraphs as they are because they will be relevant to the point in limine raised by the respondent.

The respondent opposed the application and also raised a point in limine to the effect that the notice of appeal that is required to be filed with the application for condonation is fatally defective as it is not in the Form LC4 as required by the rules of the court. That is a fact. It does not tell the respondent the need to file a notice of response within ten (10) days either.

In response the applicant says that the notice is not a nullity. He argues this in paragraphs 5-11.

“5.	It is submitted that the draft appeal is not defective so as to render it a nullity. A clear reading of the draft will show that it substantially complies with the provisions of Rule 19 of the Labour Court Rules.

6.	Further, the Respondent does not state how the draft appeal is non-conformant with the set out form. It should be noted that the appeal is but a mere draft.

7.	If the draft is defective, it should be established if the defect is incurably bad. If the defect can be cured, then no one will suffer prejudice if the said defect is cured by amendment before being accepted by the court as the final.

8.	In any event, Rule 47, which governs the completion of forms prescribed by the Rules, allows some measure of flexibility in that regard. It provides that:

(1)	The Forms prescribed in the schedule shall be used in all proceedings to which they are applicable with such modifications as the circumstances may require.

(2)	Subject to this rule, a person required to complete any form prescribed in the schedule may modify it by making such alterations to it as circumstances require.

(3)	The Registrar may refuse to accept any modified form and require the party modifying it to submit another form substantially compliant with that prescribed in the schedule if the Registrar is of the opinion that the modified form is not so compliant.

(4)	Where a dispute arises as to the discretion exercised by the Registrar under sub-rule (3), the Registrar shall refer the matter to a Judge in chambers who may thereupon-

(a)	direct the Registrar to accept the modified form;

(b)	direct the party who modified the form to submit another form substantially compliant with that prescribed in the schedule; or

(c)	give such other directions as to the manner in which the parties may proceed as the Senior Judge thinks fit in the circumstances.

(9)	No prejudice whatsoever would be suffered by the Respondent if the defect is amended and as such, the honourable court is urged to condone the defect in the draft notice of appeal.

(10)	The honourable Judge in the case of Tawana v Barclays Bank 2005 (2) ZLR 445, stated that it is not every irregularity that should be allowed to vitiate the proceedings, where the irregularities do not affect the outcome of the matter, the irregularity should not be considered. See also Zimpost v CASWUZ SC SC/09; Kambuzuma and Others v Athol Evans Hospital SC 118/2004.

(11)	It is also undesirable for the courts to decide labour matters on technicalities, therefore, it would be desirable that the application for condonation be heard on the merits”.

The applicant goes on to refer to the case of Dalny Mine v Musa Banda 1999(1) ZLR 220 (s) and to Rule 32 of the Labour court Rules to implore the court to dismiss the point in limine.

On the day of the hearing the applicant raised his own points in limine from the bar. The first point counsel raised was that there was no notice of response because the founding affidavit was not filed simultaneously with the notice of response. This point fell flat on its face as it was not supported by the facts. One wonders what counsel was up to. The second point was that there was no assumption of agency by the respondent’s counsel and consequently counsel was barred. Respondent’s response was that they had been the counsel for the respondent throughout all along and therefore there was no need to file any assumption. The court accepts the point. Applicant was not surprised to see the counsel filing papers on behalf of the respondent. If they were then they would have raised the issue earlier and not from the bar.

Going back to the notice of appeal the applicant further said that there was no prejudice and the respondent could not complain of an application which is not yet filed in the court and “in any case the draft notice is in order”. There was no prejudice. It was just there to help decide on the prospects of success.

Let me observe that the court is flooded with the preliminary points. Everyday more than half the cases start on preliminary points. In our discussion as Judges of this court we realized that everyone is facing the same problem. It appears that besides sheer ignorance of the rules, there is also a wrong attitude of tardiness. Not enough care is being taken to do the correct thing as per the rules and the law.

Looking at the present case we see that we have the typical argument that parties want to put forward for the incessant failure to follow the rules. There is no explanation as to why the rules were not followed but there is an attempt to justify the wrong. Rule 47 cannot be applied for a deliberate breach without any reason for departing. It actually says that “with such modifications as the circumstances require”. What circumstances required the modification? None. The applicant simply picked up the wrong format. We do not know whether it is out of ignorance or just carelessness. The reasons are not given. Therefore one cannot apply the rule. The registrar did not look at the notice and authorize it. Certainly it is the time the registrar played his/her role on this issue.

Form LC4 has a provision for informing the respondent that he/she must respond within ten (10) days. This is not found in the notice. What necessitated such a modification? We are not told and there can never be a reason for that modification. The bottom line is that the respondent’s counsel was not alive to this. That is the lack of diligence that the courts have been at pains to discourage for a long time. And as pointed out earlier this is causing unnecessary hindrance to the efficient disposing of justice. It is causing avoidable backlogs as arguments ad inifitum are carried out in court. The time is up for penalising such tardiness.

It was argued that there is no need to complain against a notice that is not yet before the court and that it can be changed. With due respect that is not the case. The notice is before the court. The court should not only consider the possible success on the merits in the notice but whether it is according to the rules. Indeed one may say that it is only after filing that it is to be scrutunised but why allow a  potentially wrong document to be filed? In Kiev Chamboko v Dorowa Minerals Limited  SC 26/2015 the draft notice of appeal in an application for leave to appeal did not have the date of the judgment. That was held to be fatal to the application for leave to appeal. This is a similar case. The court said that;

“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”

The same result should apply.

I will go to the draft order now.

It says that:-

“2.	The notice of appeal be deemed to have been filed on the date of this order”.

Now that being so how and when will that amendment be made which the respondent said would be made before filing? This is the lie in the argument. The counsel gave a poor return to the client. The error of the draft notice was not seen. It is advisable to withdraw an application when it is not in conformity with the rules rather than argue from a weak position.

It is now the practice in this court that everytime a party is caught up in a procedural failure the party refers to Dalny Mine v Musa Banda 1999 (1) ZLR 220 (S) and say that labour cases must not be decided on technicalities. But that case is not a licence to tardiness. The court has to stem out this tardiness of which the lawyers are even competing seriously with self actors!

It is time up.

It is true that prejudice is relevant in considering procedural irregularities.	It is true to say that the respondent cannot point to prejudice now. However the irregularities have potential prejudice. Further this irregularity of parties not following the rules is causing prejudice to parties in this court as time and resources are being put to arguing that which could have been avoided. The courts cannot sit back and allow this to continue.

Although the parties did not argue the case for condonation the court took the opportunity to look at the papers filed of record to see whether in any case from the papers the applicant has such a good case such that it would be an injustice that would cry out to the heavens if the applicant is shut out. After all, the application can be decided on the papers. All the necessary papers are filed. There are a lot of points against the application.

Firstly the applicant has camouflaged the time between the application to the labour officer and the filing of the application. The events are not given dates and yet it is important to understand why it took another month – 19th October to 18th November. The applicant is not being candid. The law requires that any further delays be explained. The applicant must draw the court into his confidence. Secondly the applicant is bringing in the issue of inadequate evidence in his appeal. This was not an issue in the previous appeal. It cannot be raised now. Thirdly the record shows behavior that is inconsistent with the contract of employment. The evidence of the one witness who was called is compact. It was left intact. Fourthly the behavior of the applicant over the trial does not show seriousness at defending himself. He seemed to want to leave issues loose so that he can raise them later. For example, the issue of the composition of the disciplinary hearing committee. He accepted it and later sought to challenge it. He also tried to blame the committee for not calling his witness!.  This is not consistent with one who seriously seeks to defend himself.

In the result the application for condonation fails on the point in limine. There is no need to bend backwards to accommodate the applicant. The errors of his lawyers should be left to visit him also.

The court is truly indebted to the many cases cited in this case. It made good reading indeed.

Finally it is ordered that:-

1.	The point in limine be and is hereby upheld.

2.	The application for condonation for late noting of appeal be and is hereby dismissed with costs.