Martin Jongwe v (1) National Foods Limited (2) Labour Court (Hon Kabasa J)

### Preamble
Judgment No. SC 73/21
1
Civil Appeal No. SC B 102A/20
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DISTRIBUTABLE     (70)

MARTIN     JONGWE

v

(1)     NATIONAL     FOODS     LIMITED

(2)     LABOUR     COURT     (HON     KABASA     J)

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & CHITAKUNYE AJA

BULAWAYO: 24 & 25 MARCH 2021 & 10 JUNE 2021

Appellant in person

S Chamunorwa, for the first respondent

CHITAKUNYE AJA. 	This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 14 June 2018 in HC 2606/17 as HB 147/18 dismissing the appellant’s application for condonation and extension of time within which to apply for a review of a labour court judgment.

FACTUAL BACKGROUND

The appellant and the first respondent were employee and employer respectively. In 2005, a labour dispute arose when the first respondent sought to transfer the appellant from Bulawayo to Harare. The appellant obtained an order interdicting the first respondent from transferring him to Harare pending consultation and clarification of issues he had raised in protest against the transfer. The provisional order was subsequently confirmed on 25 February 2010 stopping the transfer to Harare.

At some stage the dispute was referred to arbitration. The arbitrator issued an award which was not appealed against. The appellant was apparently dissatisfied with the award but did not appeal. He instead approached the Labour Court on an application purportedly in terms of  s 89(2)(d) of the Labour Act, [Chapter 28:01] seeking that the court find that he was constructively dismissed and award him damages. He also sought that the court alters the arbitral award issued by the arbitrator despite the fact that he had not appealed against that award.

The first respondent raised a point in limine challenging the procedure adopted by the appellant in circumventing available domestic remedies. On 22 May 2015 the Labour Court dismissed the application on the grounds that the appellant had circumvented domestic remedies provided for in   s 93 of the Labour Act. Aggrieved by that decision, on  29 June 2015 the appellant launched an application for leave to appeal to the Supreme Court. On 30 November 2015 that application was struck off the roll as it was fatally defective.  It was only after the application for leave to appeal to the Supreme Court was struck off that the appellant turned to the High Court with an application for review of the Labour Court judgment in HC 216/16 filed on 28 January 2016. This was now more than 8 months since the Labour Court judgment was delivered. The appellant did not seek condonation for the late filing of the application despite being aware that in terms of the applicable rule (Rule 259, High Court Rules) such an application ought to be filed within 8 weeks of the termination of proceedings to be reviewed. The application was struck off the roll for failure to seek condonation on      21 September 2017.

PROCEEDINGS A QUO

The various procedural challenges he faced in complying with the rules did not prod the appellant to seek appropriate legal assistance before embarking on the next legal process. On 4 October 2017, he filed an application in the court a quo seeking condonation for the late institution of an application for review of the Labour Court judgment of 22 May 2015 and extension of time within which to institute the application for review. This application was about two years and five months after the termination of the proceedings to be reviewed.

The court a quo aptly noted that the dispute had been taken for conciliation and then arbitration and the appellant had not appealed against the arbitrator’s award. Instead appellant had made a direct approach to the Labour Court purportedly in terms of s 89(2)(d) of the Act. The court a quo opined that this was not ingenious on the part of the appellant. The court a quo alluded to the principles applicable in applications for condonation and extension of time within which to file the delayed process after which it dismissed the application.

In dismissing the appellant’s application for condonation the court a quo stated, inter alia, that:-

“The applicant’s explanation for the failure to file a review application within eight weeks is that, although he was aware of the eight weeks’ requirement, he had to first try his luck at seeking leave to appeal. When that failed he had to fall back on a review application. After that he misunderstood the rules. In my view that is not an acceptable explanation at all. Condonation is not granted and is indeed not available because a party has failed in his or her pursuit of another remedy and because he or she would not want to accept his fate he or she would rather try luck elsewhere.

Apart from that, the applicant has not explained the delay in seeking condonation itself. To the extent that he says he was aware of the dies induciae of eight weeks he then had to give an acceptable explanation as to why he took years to approach the court seeking condonation. This is a litigant who had to wait until his initial application was dismissed as being improperly before the court to seek condonation.’

On prospects of success of the application for review, the court a quo opined that there were no prospects of success.

Consequently, the application for condonation was dismissed with costs.

Aggrieved by that decision the appellant noted this appeal on 27 October 2020 after being granted condonation and extension of time within which to appeal on 15 October 2020 in terms of r 43 of the Supreme Court Rules, 2018.

The appellant raised nine grounds of appeal.  The relief sought before this court was couched as follows:

That the appeal is allowed with costs

The judgment of the court a quo is set aside and is substituted with the following order:

“The application is hereby allowed with costs.”

And it is ordered that

PRAYER 1

The determination by the labour Court- KABASA J in case number LC/MT/JDT/74/15 handed down on 22 May 2015 is corrected and it be ordered that matter is remitted to another judge of the Labour Court-Bulawayo to hear applicant’s point in limine and merits with no fresh heads of arguments filed.

Or in the alternative Appellant prays for an order that:

PRAYER 2

The appeal is allowed with costs.

The judgment of the court a quo is set aside and is substituted with the following order; “The application is hereby allowed with costs.”

The judgment in LC/MT/JDT/74/15 handed down on 22 May 2015 be and is hereby set aside.

The judgment LC/MT/JDT/175/15 handed down on 30 November 2015 be and is hereby set aside.

And it is ordered that:

1st respondent to settle appropriate relief based on equitable salary or RTGS equivalent of US$ 1649.00[gross] for direct loss and indirect loss [compensation for loss of employment] as follows:

Rectify liability arising from underpayment for period February 2009 to March 2011 inclusive.

Restore withheld salary for March 2011

Pay gratuity at one-month gross pay for every year served [December 1989 to March 2011]

Pay severance pay of 12 months’ salary

Pay 3 months’ notice pay.

PRAYER ON COSTS

1st respondent to pay appellant’s costs.

The appeal is opposed by the first respondent.

SUBMISSIONS BEFORE THIS COURT

The appellant raised some points in limine and the first respondent also raised a point in limine. The appellant’s points in limine were to the effect that the first respondent was not properly before this court as it had failed to attend the confirmation proceedings in the Labour Court under case number LC/MT/URG77/10; secondly, the first respondent had refused to pay costs awarded against it in SC 79/20 which was an application for condonation and extension of time within which to file a notice of appeal and thirdly, that the signatures on the first respondent’s opposing affidavits by Leigh Howes were forged.

Mr Chamunorwa, for the first respondent, submitted that the appellant’s points in limine were without merit. He submitted that it was not true that the first respondent had not attended the confirmation proceedings in LC/MT/URG 77/10. In that regard he made reference to the judgment of the Labour Court showing that Mr Maguchu had in fact represented the first respondent in that hearing. Regarding the point that the first respondent had refused to pay costs in SCB 79/20, Mr Chamunorwa submitted that the appellant was misrepresenting the facts. The correct position was that the first respondent invited the appellant to furnish his banking details into which the taxed costs of $3277.75, as allowed by the Taxing officer, were to be paid. The invitation was received by the appellant’s representative in December 2020.

Instead of furnishing the details appellant filed a chamber application challenging the costs as taxed in SCB122/20 on 23 December 2020. That application is opposed and is pending. In this regard counsel tendered the letter inviting the appellant to furnish the bank details which he has not done to date. When the appellant was shown the letter he confirmed the events as narrated by Mr Chamunorwa. It was thus not true that the first respondent had refused to pay the taxed costs.

On the third point in limine Mr Chamunorwa submitted that the specimen signatures that the appellant referred to were in fact signed by Leigh Howes before two different commissioners of oaths and they pertained to different cases. This issue had only been raised in the appellant’s heads of argument in the court a quo and the first respondent could not have deposed to an affidavit on that issue at that late stage. In any case, this issue was argued before the court a quo and in making its decision the court a quo was alive to it. This can therefore not be a point in limine. Another aspect to note is that the appellant had in fact raised the issue of the forged signatures as his ground of appeal number one. To seek to raise it as a point in limine is akin to seeking to argue the merits of the appeal. This is an issue that can be argued in the main appeal and not as a point in limine.

APPLICATION OF THE LAW TO THE FACTS

It is clear that the appellant’s points in limine have no merit. As noted above the alleged failure to attend confirmation hearing in the labour court was not true. Mr Maguchu attended the hearing on behalf of the first respondent. In any case, this appeal was not about the Labour Court judgment but the judgment by the High Court denying appellant condonation and extension of time within which to file a review application. Equally the point in limine on the failure to pay costs was shown to be a clear misrepresentation. The appellant in his own wisdom or lack of it decided to challenge the costs allowed by the taxing officer instead of providing the first respondent with bank details as requested. That application is still pending. As regards the issue of the alleged forged signatures again this is a point without merit. The issue was only raised in the heads of argument in the court a quo and clearly respondent would not have filed an affidavit at that stage. It is also not disputed that the two specimen signatures related to affidavits commissioned before different commissioners of oaths and at different times. It is common cause this issue was argued before the court a quo and the appellant raised a ground of appeal on it. It is thus an issue for arguments when the grounds of appeal are argued. The appellant’s points in limine will thus be dismissed with costs.

The point in limine by the first respondent was to the effect that the notice of appeal is fatally defective.   Mr Chamunorwa submitted that the relief sought is not compliant with r 37(1) (e) of the Supreme Court Rules, 2018. He argued that the appellant is not seeking the relief he sought in the court a quo but the setting aside of the Labour Court judgment in his Prayer number 1. Equally appellant’s alternative Prayer 2 seeks the setting aside of two judgments of the Labour Court and payment of salary. He further submitted that in the court a quo the appellant’s prayer was for condonation and extension of time within which to file an application for review. The application for review was yet to be filed with the court a quo.

Counsel further submitted that it is evident from the relief sought now that it is not the same relief as in the court a quo. In that regard the appeal is fatally defective and must be struck off the roll with costs on a punitive scale.

The appellant’s response to this point in limine was to the effect that what he was seeking was what the High Court would eventually have granted him. He insisted on the relief as per his draft.

The issue for determination regarding this point   in limine is whether or not there is a valid notice of appeal before this court.

Rule 37 of the Supreme Court Rules, 2018 states the requirements for a valid notice of appeal in peremptory terms as: -

“(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner, which shall state—

(a) the date on which, and the court by which, the judgment appealed against was given;

(b) if leave to appeal or condonation and extension of time to appeal was granted, the date of such grant;

(c) whether the whole or part only, and if so which part, of the judgment is appealed against;

(d) the grounds of appeal in accordance with the provisions of rule 44;

(e) the exact relief sought;

(f) the address for service of the appellant or his or her legal practitioner.” (emphasis added)

The above requirements are mandatory. In casu, the first respondent averred that the relief sought was not in compliance with r 37(1) (e) in that the relief is not exact and the appellant is seeking a different relief from the one he sought in the court a quo. The appellant did not dispute this fact. In Sambaza v Al Shams Golbal BVI Limited SC 3/18 at p 8 this Court, faced with a similar issue, aptly stated that:

“The exact nature of the relief sought referred to in r 29 (1) (e) refers to the type or characteristics of the relief sought. This means the relief sought must be of the type relevant to the dispute between the parties. Therefore, the nature of the relief sought was wrongly framed and is incompetent as it refers to allowing an appeal and setting aside of an order, remedies which could not have been granted by the court a quo in a court application. The nature of the relief sought in substituted orders (a) and (b) does not therefore comply with the requirements of r 29 (1)(e).” (emphasis added)

It is crystal clear that the relief sought is not the same relief the appellant sought in the court a quo. The relief he now seeks is not relevant to the dispute between the parties that was before the court a quo. It is a relief the court a quo would not have granted as before that court the appellant sought condonation and extension of time within which to file an application for Review and not the setting aside of any Labour Court judgment.

The relief he sought in the court a quo was couched as follows:

“1. The application succeeds

2. Applicant shall file its notice of application within ten (10) days of this order

3. No order as to costs should respondents not oppose this application.”

Before this Court the appellant seeks substantive relief by way of the setting aside of the Labour Court’s determination of 22 May 2015 and remitting the matter for determination before a different Labour Court judge. The alternative prayer also suffers from the same fate. He is no longer seeking condonation and extension of time within which to file his application for review but seeking substantive relief in respect of a yet to be filed application for review. This he cannot do. His relief ought to have been for the court’s indulgence so that he is allowed to file an application for review in the court a quo.

As aptly alluded to in the Sambaza case (supra) the relief must relate to the dispute between the parties adjudicated upon by the court a quo. In this case the dispute was on whether or not the appellant’s failure to file his application for review within the period required by the rules should be condoned or not. The dispute at that stage was not on the merits of the application for review itself.

As was aptly noted by GWAUNZA DCJ in Madyavanhu v Saruchera & Others SC75/17 at p 6:

“An appeal court by nature is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows generally, that there is nothing for the appeal court to determine.  It is in the appellant’s interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355.  MALABA JA (as he then was) in that case held that generally a party cannot seek, on appeal, relief that they did not seek in the lower court. See also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo. “

Clearly therefore the relief sought is incompetent and this court, in the circumstances of this case, cannot grant it. The merits of the application for review were not argued in the court a quo as the issue was on condonation and extension of time within which to file an application for review. That cannot, on appeal, metamorphose into an application for review before this Court.

In Chirasha v National Foods Limited SC10/21 this court was faced with a similar relief seeking substantive relief when the appellant’s application for condonation for breach of the rules had been denied. At page 11 GUVAVA JA stated:-

“The applicant in casu, gives two prayers on appeal which are both incompetent. Firstly, the prayer that this court remits the matter to the court a quo for quantification is unsustainable. If the Supreme Court finds merit in the applicant’s appeal it will set aside the judgment of the court a quo, substitute the judgment and allow the application for condonation and extension of time within which to file an application for review. Armed with that order, the applicant will have right of audience before the court a quo to make a fresh application for review within the time frames as provided for in the rules of the labour court.”

In casu, the two prayers are incompetent as this court cannot grant such orders when the dispute between the parties pertained to condonation for failure to comply with the rules. The appellant ought to have sought an order that addresses the dispute on condonation and extension of time within which to make his application for review. The notice of appeal, in this respect, is therefore fatally defective and must be struck of the roll.

COSTS

The defective nature of the notice of appeal is such that, had the appellant sought proper legal assistance, he would not have persisted with the appeal in its present state. Counsel for the first respondent sought costs on the legal practitioner and client scale.  It is trite that the question of the level of costs to award is within the court’s discretion. In exercising such discretion the court considers several factors afflicting the case. Such factors include the conduct of the appellant in persisting with the case in circumstances where he ought not to; dishonest conduct; whether the appeal is frivolous or vexatious and whether it is an abuse of court process. These are not exhaustive. In casu, the appellant persisted with a fatally defective notice of appeal even after the defective nature of the notice of appeal was glaringly evident. Before this court he was adamant in seeking to proceed with the defective notice of appeal whose relief was in no way related to the issue of condonation and extension of time within which to file an application for review. His intransigence in the face of a fatally defective notice of appeal deserves censure by an award of costs on a higher scale.  In the circumstances costs will be awarded against him on a legal practitioner and client scale.

DISPOSITION

I am of the view that the first respondent’s point in limine has merit. The appeal must be struck off the roll.

It is, however, necessary to point out the need for the appellant to seriously consider seeking legal assistance if he entertains the idea of pursuing the matter. The grounds of appeal are generally vague and convoluted and thus not in compliance with r 44(1) which demands that the grounds of appeal must be set out clearly and concisely. The manner in which the relief sought was crafted cries out for legal assistance. Further the heads of argument are convoluted and difficult to comprehend on first reading. One had to painstakingly plough through them to decipher what it is he intended to say. So many case authorities are cited whose relevance to the issues at hand was not easy to comprehend. Legal arguments are not won by simply citing as many case authorities as possible, whether relevant or not. One must be able to articulate the relevance of the cases or principles therein to the issues at hand.

Accordingly, the matter is hereby struck off the roll with costs on a legal practitioner and client scale.

GUVAVA JA				I agree

UCHENA JA				I agree

Calderwood, Bryce Hendrie & Partners, first respondent’s legal practitioners.