Mary Sithole v Metallon Gold (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/648/13
HELD AT HARARE ON 13TH NOVEMBER
CASE NO
JUDGMENT NO LC/H/648/13
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/648/13

HELD AT HARARE ON 13TH NOVEMBER 	       CASE NO LC/CON/H/67/13

AND 22ND NOVEMBER 2013

In the matter between:-

MARY SITHOLE					Applicant

And

METALLON GOLD (PVT) LTD			Respondent

Before The Honourable Justice, L.M. Murasi

For Applicant		M R Chivaura (Legal Practitioner)

For Respondent		Mr T Tandi (Legal Practitioner)

MURASI, J:

This matter came before me on 8th November 2013 for the Application for Condonation for late noting of appeal.  Respondent raised a point in limine in that Applicant had not complied with the Rules of the Court and as a result Applicant should be barred in terms of Rule 19 (1).  Respondent further stated that the Court should proceed in terms of Rule 28 (6) (b) as Applicant had not filed Heads of Argument in compliance with the Rules.

Applicant, in response, stated that the Heads of Argument had been filed at the same time that the Notice of Appeal had been file.  What was imprope, stated the Applicant, was lack of strict adherence with the Rules as the Heads of Argument had not been formally “issued” by the Court as there was no date stamp.

The Court considered the submissions and decided to dismiss the point in limine.  The Court noted that Applicant had filed the “Heads of Argument” at the same time as the Notice of Appeal but this was not in accordance with the Rules.  It is trite that a legal practitioner owes his/her client a duty to exercise reasonable professional competence and diligence in the pursuit of his/her client’s instructions.  In casu, the legal practitioner did not attend to the detail required of him when filing the documents.  The Court dismissed the point

in limine  after taking into account the provisions of Rule 12 and Rule 26 and the facts of the matter.  The Court took this view because upholding the point in limine would mean that Applicant would start afresh and this would be financially onerous on her part.  This anomaly was caused by the tardiness of  the legal practitioner.  The matter was then postponed to 13th November 2013 to enable the Respondent to file Heads of Argument and for Applicant to regularise the filing to the Heads of Argument.

At the resumption of the hearing on 13th November 2013, Applicant largely abided by the submissions in the Heads of Argument.  Applicant’s Counsel highlighted the fact that Applicant was unaware of the time period within which to file the appeal and she had consulted her current legal practitioner well after the date to file the appeal had passed.  Applicant’s Counsel brought to the attention of the Court that Applicant was out of time  by 14 days.  Applicant’s Counsel urged the Court not to view this as too an inordinate delay as the Court had previously condoned applications which were well out of time.  On the prospects of success, Applicant submitted that she had an arguable case having regard to the proceedings which were part of the record.

Respondent was of the view that the tardiness in filing the appeal was a result of negligence and no proper reason was advanced.  Respondent, by and large, abided by the Heads of Argument.  On the prospects of appeal, Respondent submitted that this was a hopeless appeal doomed to fail.  The record, as submitted by Respondent, showed that Applicant had admitted to the charge and on appeal, had asked for leniency.  Respondent further stated that as the appeal was based on the record, there were no prospects of success.

In dealing with such matters, the Court is alive to the cardinal rules that govern such cases.  In Maheya v Independent African Church S 58/2007, the Court had this to say:

“In considering an application for condonation of non-compliance with its rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice.  Some of the relevant factors that may be considered and weighed one against the other are:  degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the Respondent’s interests in the finality of the judgment; the convenience of the Court and the avoidance of unnecessary delays in the administration of justice.”

The facts show that Applicant became aware immediately of the decision of the Appeals Committee.  Applicant attributes her inaction to lack of knowledge as she was a “self actor”.  This resulted in a delay of 14 days.  The period itself is not too an ordinate delay.  However, it is the explanation tendered by Applicant that boggles the mind.  The minutes of the Appeals Committee clearly state that “M Sithole was advised of her right to appeal”.  Applicant does not state whether she inquired of that Committee about the time period.  It would be expected of a diligent person who has been advised that there is room for appeal to immediately inquire on how it is done.  The record shows that she only consulted with the current legal practitioners on 7th June 2013 and the notice of appeal only filed on 21st June 2013.  The Court is of the view that in light of the circumstances Applicant has failed to fully explain away the reason for late filing of the appeal.  As stated in Kondanani v Muvami HH 81/2007:

“It is trite that there is a certain degree of negligence in failing to  observe the rules of the court.  An application for condonation such as the one before me is therefore an application for excusing the negligence of the offending party and the degree of such negligence then becomes a factor together with other factors that will ensure that at the end of the day justice as between the parties prevails.

Condonation should not be granted for the mere asking.  The Applicant still has to satisfy the Court that there is good cause to excuse the negligence and grant the indulgence.  (own emphasis)

The Court is of the view that Applicant has been unable to show good cause to excuse her late filing of the appeal.

The next issue to be considered is whether there are any prospects of success.  Applicant’s Founding Affidavit is very brief on the prospects of success.  Appellant states that there was no evidence to show wilful disobedience to a lawful order by the employee.  The Answering Affidavit, however, contains more detail on issues Applicant believes show that she is not guilty of the charge.

It is trite that an appeal is based on the record.  For an appeal to succeed, it should be shown that based on the facts the decision arrived at by the court aquo is grossly unreasonable,  (See RBZ v Corrine Granger and Anor SC 34/2001).  A look at the record shows a completely different story from what Applicant avers in her Answering Affidavit.  I will refer to the Answering Affidavit as the Founding Affidavit does not contain much information.  Firstly, a note by Applicant on page 16 of the record marked Annexure A2 sees Applicant tendering her apologies because “I did not do the analysis for February and March.”  Applicant goes on to particularise what she did not do as required.  Secondly, minutes of the Appeal Hearing held on 2nd May 2012 show that Applicant’s appeal  was for leniency and that she “committed the offence alone” and that “she admitted having performed her duties below expectation.”  However, Applicant’s Answering Affidavit states that she disputed the charge on appeal as there was no evidence disclosing that charge.  Applicant’s hand written note which is Annexure A1 on page 15 of the record tells a completely different story.  In that hand written note, she alleges that the penalty was too severe and appeals for leniency.  As stated above, an appeal is on the record and a decision can only be interfered with where there is a misdirection or gross unreasonableness in the decision arrived at.  What constitutes gross unreasonableness is now settled law as stated in Union Gvt v Union Steel Corporation 1928 AD 220:

“So gross that something else can be inferred from it, either that it is inexplicable except on the assumption of mala fides or ulterior motives or that is amounts to proof that the proof that the person on whom the discretion is conferred has not applied his mind on the matter.”

An examination of the record shows that Appellant at the tribunal a quo was apologetic and begging for leniency because she believed and stated that she was in the wrong.  Would any other tribunal have found otherwise in the circumstances?  This Court is of the view that a reasonable tribunal would have returned a guilty verdict.

The second tier to consider on the prospects of success is whether the Appeals Committee exercised its discretion properly in dismissing the Applicant.  Applicant failed to account for receipts with figures of US$5000.00 and USD$900.00 as per her admission.  The employer took a serious view of such performance of duty as this had happened over a period of two months, February and March.  Was the penalty of dismissal too harsh in the circumstances?   The following dicta in Nampak Corrugated Wapeville v Khoza [1999] 2 BCLR 107 [LAC] at 113 F -1 is apposite:

“the determination of an appropriate sanction is a matter which is largely within the discretion of the employer.  A court should therefore not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction.  The question is not whether the court would have imposed the sanction imposed by the employer but whether in the circumstances of the case the sanction was reasonable.

It seems to me that the correct test to apply in determining whether a dismissal was fair, is that enunciated by Lord Denming MR in British Leyland UK Limited v Swift [1981] IRLR 91 at 93 which is

“was it reasonable for the employer to dismiss him?  If no reasonable employer would have dismissed him then the dismissal was unfair.  But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.”

The Court is of the view that given the nature of the charge Applicant was facing, a reasonable employer might have reasonably dismissed her.  The Court finds that there are no prospects of success on appeal.

Turning to the issue of costs, Respondent’s Counsel stated that Respondent will not seek costs as Applicant is now unemployed.

In the result, the application is accordingly dismissed.

There is no order as to costs.

Chivaura & Associates, Applicant’s Legal Practitioners

Kantor & Immerman, Respondent’s Legal Practitioners