Numely Dzanwa v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/55/24
ZIMBABWE HELD AT HARARE 5TH
CASE NO.LC/H/1022/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 5TH FEBRUARY 2024 AND 19 FEBRUARY 2024

In the matter between

NUMELY DZANWA

And

JUDGMENT NO. LC/H/55/24 CASE NO.LC/H/1022/23

APPLICANT

DELTA BEVERAGES (PVT )LTD	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT : IN PERSON

FOR THE RESPONDENT:MR K. NCUBE (LEGAL PRACTITIONER)

MAKAMURE J:

This is an application for condonation for late noting of appeal. It is opposed.

I must express from the outset, my concern with the perception some litigants may have of the rules of the Labour Court Statutory Instrument 150/2017(the Rules) and how they are applied. I say this in view of the present matter and how it was presented. It is trite that this Court exercises equitable jurisdiction in dealing with matters which are brought before it.

However, this is always done within the confines of both the rules of the Court and the Labour Act Chapter 28:01 ( the Act). In Zimbabwe Platinum Mines (Private ) Limited v Marko Phuti SC 21/2016 the Supreme Court stated that :

‘It is trite that the Labour Court is entitled to dispense equity in its duty to do substantial justice between the parties . However , it cannot do so outside the confines of the law.’

The circumstances leading to the present application are stated below.

The applicant was employed by the respondent. She was charged with the offence of theft of certain items which included mincemeat and some milk. She was charged in terms of the applicable code of conduct. Disciplinary proceedings were conducted against her. She was convicted and  penalized with dismissal. She appealed internally but her appeal was

dismissed. Her sole ground of appeal before the Works Council which is the last stage of the internal appeal process was ,and I quote :

‘1.Appellant acknowledges its learnings from the unfortunate incident and appeals for a lighter penalty.

PRAYER

Appellant prays for a lighter penalty and reinstatement without loss of pay and benefits.’

It is common cause that this is not the first time that the applicant has appeared before this Court seeking the same relief .In a previous appearance the matter was struck off the roll. This was on 26th October 2023. The respondent refers to defects which afflicted the earlier application but without a copy of that order this Court remains uninformed. However, in the circumstances of the present application that absence will not affect the findings to be made. This is so because the decision to be appealed should condonation be granted is before the Court and the parties have amply made their respective positions clear.

The Applicant seeks condonation in order to appeal against the decision of the Works Council which dismissed her appeal on the 24th of March 2023.The application before this Court was issued on the 11th of December 2023. In terms of Rule 19 of the Rules an appeal must be noted within twenty-one days of the decision in question being made or on its coming to the attention of the appellant. The appellant is therefore required to explain why there was such delay. In an application for condonation, the Rules require the application to be accompanied by the intended grounds of appeal. The following is the intended ground of appeal:

‘1.The Works Council Appeal Hearing Committee misdirected itself at law by upholding the decision of guilty verdict on theft charge despite lack of evidence to substantiated (sic)the allegation. A lighter penalty i.e. written warning would have been an appropriate punishment.’

At all material times of the proceedings before the lower tribunals the applicant was represented by a trade unionist. However, before this Court she was not represented.

It is trite that in order for an application of this nature to succeed the court will be guided by certain factors which include the following:

Whether or not the delay was inordinate considering the circumstances;

There is a reasonable explanation for the delay;

Prospects of success of the appeal on the merits should the application be granted;

The possible prejudice to the other party should the application be granted.

See Stephen Kutiwa v ZIMPOST SC85/05.

Preliminary issues were raised on behalf of the respondent. Merits of the application itself were also considered. The Court will therefore deal with the preliminary issues and then proceed to consider the main application.

The respondent raised two preliminary issues .These are that the grounds of appeal are defective and that the appeal is invalid. The respondent argued that the applicant seeks to impugn the decision of the Works Council without seeking the setting aside the decisions of the Head of Department and that of the Immediate Superior. In support of this argument Mr Ncube who appeared on behalf of the respondent referred the Court to authorities which included the case of Fadzai John v Delta Beverages Ltd SC40/2017. It was submitted on behalf of the respondent that in the circumstances the notice of appeal is fatally defective and the application should therefore be struck off the roll. On the second preliminary issue it was argued on behalf of the respondent that the applicant seeks to have the Court set aside the conviction and yet in her appeal before the Works Council the applicant was seeking a lighter penalty. It was argued that the prayer before this Court was substantially different from what she was asking before the Works Council. It was submitted that the appeal was under the circumstances invalid. In support of this submission the Court was referred to the case of S.T. Chikanda v United Touring Company Limited SC 7/99. It was submitted that the Court could not consider a point which the Works Council was not asked to consider and for that reason the application must be dismissed.

On the merits it was argued on behalf of the respondent that the appellant is appealing for mercy and that there was no merit in it. In this respect reference was made to the applicant’s founding affidavit where she appeals for the mercies of the Court to grant the application as she has worked hard for the respondent and that she has family responsibilities and obligations . It was argued that the applicant failed to give a reasonable explanation for the delay and the extent thereof. Reference was made to her representative’s supporting affidavit justifying the delay. The explanation by the trade unionist was that he was ill and was hospitalized at the time that he was supposed to note the appeal on behalf of the

applicant. However, there is no affidavit from the institution where he was hospitalized confirming this position.

On the prospects of success, as indicated in the preliminary issues , there was no attack on the initial finding that she had stolen from the respondent. What she asked for when she appeared before the Works Council was a lighter penalty. She can therefore not attack the findings of guilt before this Court. Besides ,the argument proceeded ,she was appealing against the theft of mince meat only. This means that in the event that she was exonerated with respect to that mince meat she would remain guilty of theft of the other items.

It was argued on behalf of the respondent that there is need for finality to litigation. The Court was urged to stamp its authority and put an end to the applicant’s shenanigans considering that a similar application was once struck off the roll before this Court. It was further argued on behalf of the respondent that there was evidence against the appellant which proved on a balance of probabilities that she had committed the offence which she was charged with. It would therefore be an unnecessary burden on the respondent to oppose a hopeless appeal.

On her part the applicant insisted that the preliminary issues were baseless and should therefore be dismissed so that the application could be heard and the appeal be heard on the merits. She explained with respect to the delay that her representative fell ill and deposed to an affidavit showing that at the time that he should have assisted the applicant in noting the appeal timeously he fell ill and was hospitalized hence the delay. The Court was referred authorities which included Diocese of Harare v The Church of the Province For Central Africa SC9/2010; Electoral Supervisory Commission v Morgan Tsvangirai SC 34/03.It was submitted that what was upheld by the Works Council were the findings and conclusions made by both the Immediate Supervisor and the Head of Department. She submitted that in terms of the applicable employment code she was supposed to appeal the decision of the Works Council and not that of the Immediate Supervisor or the Head of Department. That, I understand is the explanation for her not indicating what would happen to the other decisions should the Court set aside the decision of the Works Council.

On the merits the applicant argued that she had a good and reasonable explanation for the delay. Reference was made to case authorities which included the case of General Accident Insurance Co South Africa Ltd v Zampelli 1988(4) SA 407. She insisted that the illness of her representative was a good explanation for the delay in noting the appeal. The applicant

argued that she enjoyed good prospects of success considering that the Works Council erred

in upholding the verdict of guilty “when the burden of proof was not weighed on a balance of probability.” The applicant insisted that the Rules were on her side and urged the Court grant the application.

In assessing the preliminary issues, it is clear that the when applicant appealed to the Works Council ,she appealed only against the dismissal penalty. She did not appeal against the finding of guilt. Before this Court she would like to challenge the finding of guilt. The Works Council did not have a chance to consider this .It is trite that an appellate court cannot consider a ground which the lower tribunal did not consider. In Kundai Magodora and Others v Care International Zimbabwe SC24/14 the Supreme Court stated as follows :

‘In essence , the relief that they pray for on appeal to this Court is completely different from what they sought hitherto. In this respect, the appellants are effectively inviting this Court to sit as a court of first instance and to adjudicate a matter that was not ventilated before or determined by the Labour Court…it would be highly irregular and unfair for an appellate court to assume the jurisdiction of a court of first instance and to pronounce on issues which are cognizable in a court of first instance but have not been canvassed before that court.’

In Lawsign Nyarumbu v Sandvik Mining and Construction Zimbabwe (Pvt) Ltd SC31/13 the Supreme Court stated that :

‘ Moreover, the grounds of appeal before the Labour Court were confined to theft, without any reference to negligence , and negligence was not canvassed by the parties in the proceedings before it. What the court did, by finding the appellant guilty of negligence, was to usurp the functions of the respondent’s disciplinary and appeals committees. It follows that the court fundamentally erred in its finding of negligence , as that  was an issue which was clearly not the subject of appeal before it. ‘

Equally this Court cannot deal with the question of the finding of guilt of the appellant when this was not dealt with by the Works Council . There is therefore merit in the preliminary point raised. It is accordingly upheld.

On the prayer, it does not say what would happen to the other decisions should the decision of the Works Council be set aside. In Fadzai John v Delta Beverages Ltd (above) the Supreme Court  stated that a prayer must be exact in nature in the following words:

’In seeking the setting aside of the decision of the court a quo, the applicant neglected to address what should happen to the decision of the disciplinary hearing.’

The learned Judge quoted with approval what that same court stated in Ndlovu v Ndlovu & Anor SC133/02 that is :

“‘The exact nature of the relief sought was not stated . What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed . If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place . In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.’”

As indicated earlier the applicant in her prayer only dealt with the decision of the Works Council but did not indicate what should happen to the other decisions. The prayer is therefore defective. There is therefore merit in this preliminary issue raised. It is upheld.

On the basis of the two preliminary issues which were raised on behalf of the respondent this application is not properly before the Court.

The applicant appears to have been of the view that on the basis of provisions of the Rules she is entitled to having the Court consider the application for condonation and in so doing consider the finding of guilt which was not considered by the Works Council .The basis of her application is that the delay in bringing the application was not inordinate ; that she had a reasonable explanation therefor and further that she enjoyed good prospects of success.

The delay in noting the appeal is in excess of six months. The sole reason for that delay, as shown in her founding affidavit, was that her representative fell ill and was hospitalized at the time that the appeal was supposed to have been noted that is on or before the 21st April 2023. When he returned to work, he duly filed an application for condonation for late noting of appeal. That application was struck off the roll by this Court ‘for being fatally defective ‘ on 26th October 2023.The applicant in her founding affidavit expresses the importance of the case to her and her family as the sole breadwinner with a number of obligations. The applicant then refers to the question of the penalty of dismissal and how it has made her and her family suffer  psychologically and financially. The applicant avers that :

‘It is a matter that is crying for the attention of Court to judicially exercise its discretion because of the faith I have in Labour Court that it is a Court of fairness, justice and equity.’

The applicant asserts further in her affidavit that:

’23.I appreciate that the respondent will suffer the inconvenience of defending again this application for condonation should he wish. But it is an inconvenience that is provided for in the Labour Court Rules and barely it will be a material

inconvenience. And I’m not abusing Court process but I’m simply begging the Court for the indulgence to have another day in Court to prosecute my case to its finality’.

R19 of the Rules of this Court provides (in part) as follows:

‘A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or award, do the following-… ‘

The rule then directs on what has to be done. The use of the word ‘shall ‘ means that the litigant has no option but to do this within twenty-one days from the date the decision in question was received.

R32 provides as follows:

‘32. Departure from rules

At any time before or during the hearing of a matter a Judge or the Court may—

direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the Judge or Court is satisfied that the departure is required in the interests of justice, fairness and equity;

give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the Judge of the Court to be just, expedient and equitable.’(Emphasis added)

In the present case the applicant delayed in noting an appeal. Her reason was that her representative had fallen ill. Meanwhile she was aware that the Rules require her to note the appeal within a twenty-one- day period. Understandably she opted to secure the services of a trade unionist because they are less costly than registered legal practitioners. The

representative was hospitalized but obviously the hospitalization did not stop the time from running. The applicant did not engage anyone else within the trade union but waited for her chosen trade unionist to recover. When he was well enough to assist her the time limit set out in R19 had long lapsed. An application for condonation was then filed. That application turned out to be fatally defective. Consequently, it was struck off the roll. She is back again with the same trade unionist assisting by way of a supporting affidavit to once again make an application with defects . She begs the Court to allow the application because it is a court with equitable jurisdiction.

The whole idea of representation by a person who is knowledgeable is to ensure that they guide the litigant to do what is right or make the correct decisions. However, when regard is had to the proceedings before the Works Council it will be noted that on the basis of the grounds before the Works Council , the present application ought not to have been made in its current format. The representative , I think ,should have properly advised the applicant . The grounds of appeal even at the Head of Department Level as the record  shows were:

“ G) The committee misdirected itself and its findings that appellant did not show any remorse during the hearing . Yet in mitigation, the appellant asked for leniency. The appellant’s actions during the hearing were driven by remorse.

The committee misdirected itself in assuming that the 5KG of mincemeat the appellant moved was the one missing. Yet it was not established whether the mincemeat used on Monday could have been the one stored by the appellant.

Appellant acknowledges its learnings from the unfortunate incident and appeals for a lighter penalty.’

After having sight of the grounds of appeal the Chairperson of that Committee made the following remarks:

‘The first question is that we noted that you were pleading not guilty. However you stated in the grounds of appeal that you are now pleading for a leniency (sic). Would someone who is not guilty plea for leniency? Maybe you can explain?”

The response was rather longwinded but was not exactly responding to the question which had been posed. Later on, during those proceedings, the representative stated :

… ‘Moving forward what we did get from the case are lessons. Our prayer was for a leniency or lighter penalty. The lesson is that jobs need to kept.(sic)…’

The attitude of the applicant was consistent. At Works Council level she asked once again for a lighter penalty. It is only before this Court that she assumed that everything done by the earlier tribunal could be ignored so that this Court sits as a court of first instance. That is totally unacceptable. I therefore am constrained to straightaway deal with the prospects of success should the application be granted.

What I am getting is that at that before the Works Council , applicant did not seek to challenge the finding of guilt. They chose to continue pleading for leniency. Now if justice, fairness and equity should prevail, how can a litigant who earlier on asked for a lenient sentence go on to ask an appeal court to upset a finding of guilt which the earlier tribunal had not dealt with ? Such a prayer is totally unrelated to the prayer before the earlier tribunal. The Court would be breaking the rules if it were to grant such a prayer. When an appeal court sits, it is guided by what the lower tribunal or tribunals considered. It is bound by that record. The question of equity ,fairness and justice is exercised within the confines of the record and not be taken out of context. Zimbabwe Platinum Mines (Private ) Limited v Marko Phuti ( above). Thus ,the fact that the Rules provide for equity ,does not mean that the Court can do anything which a litigant asks for. It must act within the law and follow precedent. The Court cannot consider the appellant’s guilt where the earlier tribunal had not considered it and hide behind the equity provision. Lawsign Nyarumbu v Snadvik Mining and Construction Zimbabwe ( Private ) Limited (above). What this means is that the prospects of success on the merits are slim.

The extent of the delay is eight months. The explanation for the delay was not satisfactory. The delay is therefore inordinate as it could have been avoided. Even had the delay been not inordinate and the explanation was reasonable ,the absence of prospects of success on the merits would still militate against granting of the application.

After assessing the facts and the law, the applicant has on a balance of probabilities failed to discharge the onus required of her. In the circumstances the application fails. As already indicated the matter could have been disposed of on the basis of the preliminary points raised on behalf of the respondent. However , it was necessary to clarify that matters which come before this Court are considered taking into account the record of the lower tribunal, all the

relevant factors and not only because the Rules provide for justice, fairness and equity. Rules are meant for the proper administration of justice.

Having said the above, it is ordered that:

The application for condonation and extension of time within which to note an appeal be and is hereby dismissed. There is no order as to costs.

GILL GODLONTON AND GERRANS, RESPONDENT’S LEGAL PRACTITIONERS.