Sebastian Chiutsi v The Secretary for Primary and Secondary Education & 2 Ors

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/116/20
HELD AT HARARE ON 15th JANUARY, 2020
CASE NO. LC/H/170/19
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/116/20

HELD AT HARARE ON 15th JANUARY, 2020      CASE NO. LC/H/170/19

AND 5th JUNE, 2020				       X REF: LC/H/REV/75/19

In the matter between:-

SEBASTIAN CHIUTSI						Applicant/Appellant

vs

THE SECRETARY FOR PRIMARY AND

SECONDARY EDUCATION					1st Respondent

And

THE MINISTER OF PRIMARY AND

SECONDARY EDUCATION 					2nd Respondent

And

THE CIVIL SERVICE COMMISSION				3rd Respondent

Before the Honourable Mhuri, J.

For Applicant/Appellant	:	In Person

For 1st, 2nd & 3rd Respondents	:	Ms M. Chiba

(Law Officer, Attorney General’s Office)

MHURI J.

This judgment is in respect of an application for review (LC/H/REV/75/19 and an appeal (LC/H/170/19) filed by the applicant/appellant on the 7th August, 2019.

Respondents raised preliminary issues in respect of both and it is these, that this judgment addresses.

Applicant was employed as headmaster under the 2nd respondent and was based at Chibara Primary School.

On the 31st January, 2018 applicant was charged with acts of misconduct and by a determination letter dated the 4th July, 2019 issued on the 15th July, 2019 applicant was discharged from respondent’s service with effect from the 19th July, 2019.

On the 7th August, 2019 applicant filed an application for review under case No. LC/H/REV/75/19.

Separately but on the same date (7th August, 2019) applicant filed an appeal under case No. LC/H/170/19 in this Court.

Respondents have raised preliminary issues in respect of both the review and appeal

AD REVIEW

Respondents argue that the application for review was filed out of time.  In terms of the Court’s Rules, Statutory Instrument 150 of 2017, and Rule 20 sub rule (1) in particular the application was to be filed within 21 days from the date the proceedings are concluded.  The proceedings were concluded on the 4th July, 2019 and the application was filed on the 7th August, 2019.  It was further submitted that the 21 days expired on the 2nd August, 2019, hence the application is improperly before the Court.  No application for condonation of the late filing of the application was applied for by application.

The other argument was to the effect that by filing both processes on the same date but separately, applicant failed to comply with rule 19 sub rule (3) which provides for the procedure to be followed when one seeks review of the proceedings in respect of which he is making an appeal.  It was argued that applicant ought to have used Form LC4 in respect of both processes as provided in the Rules.

Respondents also raised the issue that applicant filed answering affidavits and introduced new evidence by attaching documents to the answering affidavits.

Respondents moved the Court

to expunge the answering affidavits and the attached documents.

to strike off the application for review for being improperly before the Court.

Applicant’s response to the preliminary issues raised was that he received the determination letter on the 17th July, 2019 and so he had 21 days in which he was supposed to approach either the Commission or the Labour Court.  It was this date (17th July, 2019) that he used to calculate the dies inducea.  He also submitted that at this Court his papers were accepted upon filing and no issue was raised.  He queried the logic why the issue was being raised now by respondents and why take the date of 4th July, 2019 in calculating the dies.

As regards the answering affidavits and attached documents, applicant submitted that if expunged from the record, his case will be weakened.  He questioned respondent’s motive for raising this issue.

AD APPEAL

Respondents raised the point that appellant mixed appeal and review grounds (this point was also raised in respect of review ground 2) and also that these grounds are not concise and precise.

It was submitted, appellant just threw everything in with the hope that the Court will sift through and pick the proper grounds, for example

ground 1 is ground 1 in the application for review;

ground 3 is ground 2 in the application for review;

ground 2 appellant did not specify which juristic organisation he is referring to, he just says there are other members in charge without clarifying what they are in charge of.

Respondents cited the case of –

SAMUEL SITHOLE

Vs

MINISTER FOR PRIMARY AND SECONDARY EDUCATION N.O. LC/H/288/18

Judgment No. LC/H/203/2019 and moved that the appeal be struck off as the Notice of Appeal is fatally defective.

In response, appellant submitted that he is a lay person.  Respondents are dealing with semantics.  On the issue of review and appeal grounds he submitted that these were branches of the same tree.  He moved that the respondent’s points be dismissed.

As regards the answering affidavits and attached documents, the Rules do not provide for this, therefore it was improper for applicant to file the affidavits and the documents.

If applicant felt so strongly that the documents would assist him in his case, there is a procedure to be followed to have them admitted by the Court.  So, for having been improperly filed, these affidavits and documents thereto attached, are hereby expunged from the record.

The procedures to be followed in all matters to be filed in this Court are clearly provided for in this Court’s Rules Statutory Instrument 150 of 2017.  These Rules apply to both represented and self-acting litigants.

As stated earlier, applicant filed both an appeal and an application for review on the same date but separately.

Rule 19 deals with the filing of appeals and Rule 20 deals with the filing of reviews.

However sub rule (3) of Rule 19 provides the procedure to be adopted where a litigant wishes to seek review of the proceedings for which he is appealing against.

“(3) A person making an appeal under this rule who also wishes to seek a review of the proceedings in respect of which he or she makes the appeal shall, at the same time, complete in three copies of a notice of review in Form LC4 and serve such notice together with the notice of appeal under this rule.”

Considering that applicant wished to seek review of the proceedings he was appealing against and considering that he filed both processes on the same date, applicant should have adopted the procedure stipulated in the above sub rule (3).  He did not, but separately filed the review in terms of Rule 20.

Rule 19(1) provides,

“(1)	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 direction or award, do the following –

complete in three copies a notice of appeal in Form LC 4; and

……………………………………………..

……………………………………………..

……………………………………………..

……………………………………………..

……………………………………………..”

Rule 20 sub rule (1) provides;

”A person wishing to seek review of proceedings referred to in terms of the Act shall, within twenty-one days from the date when the proceedings are concluded, do the following –

complete in three copies a notice of appeal in Form LC 5

……………………………………………..

……………………………………………..

……………………………………………..

……………………………………………..

……………………………………………..”

(Underlining for emphasis)

The difference between these two sub rules is the date from which the dies inducea starts to run.  For an appeal, it is from the date of receipt of the determination, decision, award or direction to be appealed, and whereas for a review, it is from the date, the proceedings to be reviewed were concluded.  However, this requirement would not apply where a party has proceeded in terms of sub rule (3) of Rule 19 as both the appeal and review are filed at the same time, i.e. at the time the appeal is filed.

Since applicant did not proceed in terms of Rule 19(3) but Rule 20, the time limits provided therein have to be followed.

The proceedings were concluded on the 4th July, 2019.  The dies inducea for filing the review started running from this date and not from the date applicant received the determination.  The application for review therefore was to be filed on the 2nd August, 2019.  Applicant however filed it on the 7th August, 2019, making it out of time by three days,

Applicant argued that he could not have known about the date the proceedings were concluded as it was only on the 17th July, 2019 that he received the determination.  Applicant however could not explain why he did not file his application by the 2nd August since by the 17th July, 2019 he was still within the time limit within which to file.

The application having been filed out of time and applicant having not applied for condonation of late filing of application for review, the application for review is improperly before the Court.  To that end, the point in limine as raised by respondents has merit and is therefore upheld. Consequently the application for review is hereby struck off.

AD APPEAL

Appellant’s grounds of appeal are as follows:-

“(1)	the 1st respondent grossly erred by dismissing appellant following a disciplinary hearing conducted by a panel of three which was not properly constituted in terms of the law as it included a human resources officer (Mr. R. Mutata) who is in a junior grade to that of the appellant.

(2)	the 1st respondent grossly erred at law by imputing that appellant was responsible and accountable for juristic organization in which there are other members in charge.

(3)	the dismissal of appellant was premised on an audit report which was not done according to the governing law.

(4)	the 1st respondent wrongly dismissed the appellant by relying on the evidence of the auditor who had compromised the audit report by taking away appellant’s records.”

As submitted by respondents, indeed the notice of appeal mixes both grounds of appeal and review.  Ground 1 is a ground for review and not appeal.  Ground 3 is the same as ground for review number 2.  Ground 2 is not clear and concise.  It is not for the Court to try and put a meaning to a ground of appeal.  The meaning must be clear and equally so it is not for the Court to try and sift the grounds in order to separate grounds of appeal from the grounds for review.

Forms LC4 and LC5 referred to in Rules 19 and 20 specifically provide that the grounds must be concise and precise.  These two Rules provide the procedure to be adopted and Sections 92E and 92EE of the Labour Act [Chapter 28:01] are the law applicable to appeals and reviews.  As such it is not any party’s standard as queried by appellant.  It is also not a question of semantics as submitted by appellant.  Whilst they could be two branches of the same tree, the law provides separate procedures to be followed when dealing with them.

I am persuaded by my brother MANYANGADZE J’s observation in the matter of SAMUEL SITHOLE VS MINISTER OF PRIMARY AND SECONDARY EDUCATION (supra) that applicant must sort out his issues and ensure that his pleadings are properly before the Court.  I find that the notice of appeal is fatally defective on the grounds raised by respondents.  The point in limine is therefore upheld. The consequence of which is that the appeal be and is hereby struck off.

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE – Respondent’s legal practitioners