Zimbabwe Revenue Authority v Abigail Mukahiwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
1 FEBRUARY 2024
JUDGMENT NO. LC/H/53/24 CASE NO.
LC/H/999/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 1 FEBRUARY 2024

AND 19 FEBRUARY 2024

IN THE MATTER BETWEEN:-

JUDGMENT NO. LC/H/53/24 CASE NO. LC/H/999/23

ZIMBABWE REVENUE AUTHORITY	APPLICANT AND

ABIGAIL MUKAHIWA	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. B. Mahuni

For Respondent	Mr. T.J. Mafongoya

MURASI J.,

This is an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.

In a judgment dated 6 January 2023, this Court set aside the decision of Determining Authority which had found the Respondent Not Guilty of the misconduct charges. The Court ordered parties to file submissions pertaining to issues of aggravation and mitigation. In a further decision dated 13 April 2023, this Court issued a penalty of a Final Written Warning and ordered Respondent’s reinstatement to her former position without loss of salary and benefits failure of which Respondent was entitled to damages in lieu of such reinstatement. Subsequent events at the instance of the Applicant are the result of this application. I should also state that at a hearing of 16 October 2023, Respondent’s legal practitioner raised preliminary points. In a judgment dated 20 October, 2023, this Court proceeded to uphold two of the preliminary points raised while dismissing the third one. The application was accordingly struck of the roll.

At the commencement of this hearing, Mr. Mafongoya stated that he was abandoning the preliminary points that had been raised in the documents filed of record as Respondent was eager to have the matter dealt with in the merits.

In motivating the application, Mr. Mahuni stated the explanation was contained in the Founding Affidavit. He submitted that the main reason was that Applicant had filed a previous application which was heard on 16 October 2023 but was struck of the roll as it was found to be defective. He attributed the failure to comply with the Rules to a failure to secure the requisite Resolution from the authorities in time due to the bureaucratic processes in the Applicant. I will endeavor to reproduce the explanation from the Founding Affidavit so that the full extent is captured. It is as follows:

“11. The intended application for leave to appeal could not be filed immediately after the decision of this Honourable Court under judgment LC/H/110/23 of case number LC/H/APP/525/22 due to the filing of similar proceedings under case number LC/H/338/23.

Pursuant to the judgment striking of the application for leave to appeal under LC/H/320/23, the Applicant took the necessary steps to provide its legal practitioners with instructions and requisite documents to file the present application.

Due to the bureaucratic nature of the organisation, the Applicant had to obtain the necessary approval and documents to instruct its legal practitioners to proceed with the application for leave to appeal to the Supreme Court.

The Applicant’s legal practitioners attempted to rectify the defect of failure to attach board resolution at the hearing under case number LC/H/APP/338/23 by seeking leave of the court as required by the rules of the court to grant the Applicant an opportunity to file the board resolution, to which the court was not amenable. The Applicant has shown willingness to rectify the defect but to no avail, therefore the reason for the present application.”

Asked by the Court when the present application was filed, Mr. Mahuni stated that it was filed on 20 October 2023 when the judgment striking the matter of the roll had been issued on 20 October 2023. That was nearly thirty (30) days after the event. The original judgment had been issued on 13 April 2023. He said he would rely on Supreme Court cases in the form of ZACC v Mangwiro & Anor SC 11/22 and Chomurema vs TelOne SC 86/14. He stated that he would refer to Mr. Phiri’s explanation in the circumstances. Asked by the Court point to any paragraph in Mr. Phiri’s Supporting Affidavit which explained the reason for the delay, he was unable to do so.

As far as prospects of success were concerned, Mr. Mahuni stated that the Applicant relied on the fact that this was a Category D of ence which necessitated a dismissal of the Respondent. He was however not able to outline the point of law which the Supreme Court was being asked to determine in the first ground of appeal. The first prospective ground of appeal reads as follows:

“The Court a quo erred at law in sentencing the Respondent to a Final Written Warning after finding her guilty of a serious of ence warranting dismissal.”

The second prospective ground of appeal reads as follows:

“The Court a quo erred at law and misdirected itself in ordering reinstating of the Respondent without loss of salary and benefits, or alternatively damages in lieu of reinstatement after concluding that the Respondent was negligent on her duties amounting to an act inconsistent with the express or implied terms of contract of employment.”

Requested by the Court to amplify on this ground as it concerned an element of the court’s discretion, Mr. Mahuni referred the Court to Applicant’s heads of argument, the latter did not address the point in question.

In response, Mr. Mafongoya stated that he would abide by the documents filed of record. He pointed out that Applicant had failed to deal with the explanation as the delay did not begin in October 2023 but in April 2023 when the main judgment was delivered. He further stated that Applicant did not attempt to deal with that fact. He submitted that Applicant could not take into consideration the application which struck of the roll in October 2023 as it was a nullity and as such Applicant could not refer to such a nullity. Mr. Mafongoya further submitted that the ‘Resolution’ was supposedly made on 12 July 2023 and no explanation was given as to why it was only made in July when the decision to file an application for leave to appeal was made as early as May 2023. The attendant question, he argued, was why there was an attempt to attach the ‘Resolution’ to a nullity whilst flouting the Court’s rules.

Mr. Mafongoya stated that Applicant alludes to the fact that there was bureaucracy in Applicant’s organization without pointing where such bureaucracy existed. He said that bureaucracy was not a legal term but a factual issue which needed to explained. He said a failure to give such an explanation would denote a willfulness to disregard the rules of the court. He added that there was no explanation for the added delay in filing the present application as it was only filed in December 2023.

Mr. Mafongoya submitted that there were no prospects of success as the Applicant does not challenge the findings of the Court. He stated that the Court’s judgment had addressed the Code of Conduct, precedent from the Supreme Court and that Applicant had not taken issue with those findings. He argued that the Court was then sitting as a tribunal of first instance as it was the one which had found the Respondent guilty and had exercised its discretion as permitted by the Applicant’s Code of Conduct. He further argued that no points of law can be discerned from the prospective grounds of appeal.

ANALYSIS

This is one of those cases where an explanation is woefully deficient. A reading of the Founding Affidavit which Mr. Mahuni stated he was relying upon shows the following features of such deficiency. Firstly, in paragraph 11 of that document, Applicant avers that the filing ‘similar proceedings under case number LC/H/338/23 impacted on the delay. There is no explanation as to what this case involved and why it caused the delay in making the application for condonation or the actual leave to appeal. The Court is no wiser.

Secondly, paragraph 12 of the Founding Affidavit also shows a dearth of information. It is stated that Applicant ‘took the necessary steps to provide its legal its legal practitioners with instructions and requisite documents to file the present application’. There is no indication as to when this took place. The timelines are not given. It is also not explained what action the legal practitioners took and when this took place. As pointed out elsewhere in this judgment, the Supporting Affidavit from Mr. Phiri is equally unhelpful as it does not contain an iota of the explanation for the delay.

Thirdly, Applicant refers to ‘the bureaucratic nature of the organization’. As pointed out by Mr. Mafongoya, this ‘bureaucratic nature’ of the Applicant remains embedded with Applicant. The Court has not been favoured with the nature of the ‘bureaucracy’. This remains an item for surmise and conjecture.

Fourthly, paragraph 14 remains confusing. It is common cause that the Court’s judgment of 20 October 2023 emanated from Applicant’s attempt to circumvent the rules of the Court. Applicant had filed a ‘supplementary affidavit’ without the leave of the Court as required by the rules. No application for such leave had been made. The supplementary affidavit was therefore improperly before the court. No application to condone such filing was made.

It is common cause that the judgment sought to be appealed against is one of April 2023. The time therefore runs from that date. The attempt to make appear that the time should begin to run from October 2023 is not correct. What was filed was a nullity and that cannot be taken into account. Can it therefore be said that Applicant has tendered a reasonable and acceptable explanation in the circumstances? I think not. In Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC 34/17 ZIYAMBI JA had this to say:

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

I have alluded to the yawning gaps in Applicant’s explanation for the delay. The delay, as can be gleaned from the ‘explanation’ was due to Applicant’s own dilatoriness.

I will now turn to prospects of success. Elsewhere in this judgment I have reproduced Applicant’s prospective grounds of appeal. It is trite in an appeal from this Court to the Supreme Court, the appeal must be on points of law. This Court enquired of Mr. Mahuni what point of law was being raised in the first ground. Mr. Mahuni was unable to give any explanation except to state that it amounted to one. In that ground of appeal, Applicant seems to take issue with the fact that Respondent was given a Final Written Warning as penalty. Applicant does not relate to the findings made by the Court in arriving at that penalty. The same applies to the second ground of

appeal. Pages 17 to 19 of the record contain part of the Court’s judgment. Those pages clearly give the reasons why the Court was of the view that the penalty it finally meted was commensurate with the case that was before it.

What is clear from Applicant’s Founding Affidavit and the heads of argument is that Applicant does not refer to any of those findings as being incorrect or misdirections in order to get the audience of the Supreme Court. It is a requirement that points of law should be apparent ex facie the pleadings. Alternatively, a litigant should point to misdirections made by the court a quo to ‘catch the ear’ of the Supreme Court. The Supreme Court cannot be requested to act as the next tribunal to ‘re-hear’ to have a dif erent decision. This was counselled against in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20 in the following words of MAKARAU JA (as she then was):

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court is determining appeal from the court a quo is therefore fairly narrow.

Put dif erently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of the law on the matter in dispute or, if based on the facts of the matter, to set the decision aside as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

This Court acted as a court of first in meting out the penalty to the Respondent. It thus cannot be argued that an employer takes a serious issue when there is an infraction of the Code of Conduct. As stated elsewhere in this judgment, Applicant does not take issue with the findings made by the Court in arriving at the penalty, thus challenging the rationality of the decision. It is thus my view that there are no prospects of success on appeal.

In the result, the application for condonation of the late filing of an application for leave to appeal to the Supreme Court is hereby dismissed with costs.

Muvingi & Mugadza Legal Practitioners-	Applicant’s legal practitioners Mafongoya & Matapura Law-	Respondent’s legal practitioners.