Rainbow Tourism Group (Private) Limited v Alec Gube

Judgment No. SC 73/18 1
                                                         Civil Application No. SC 737/16


DISTRIBUTABLE                (66)




            RAINBOW        TOURISM      GROUP (PRIVATE)              LIMITED
                                          v
                                     ALEC GUBE




SUPREME COURT OF ZIMBABWE
BHUNU JA
HARARE, FEBRUARY 2, 2017 & NOVEMBER 15, 2018




F. Chinwadzimba, for the appellant

J. Samukange with E.R Samukange, for the respondent




CHAMBER APPLICATION



            BHUNU JA:        This is an application for leave to appeal against the review

judgment of HOVE J siting at the Labour Court at Harare on 5 December 2014. Aggrieved

by the outcome of the review proceedings the applicant unsuccessfully applied for leave to

appeal to this Court.




            Where leave to appeal to this Court is refused by the court a quo, the aggrieved

party has a right to apply for relief from this Court in terms of s 92F of the Labour Act

[Chapter 28:01]. The section provides as follows:
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                                                              Civil Application No. SC 737/16

      “92F Appeals against decisions of Labour Court
      (1) An appeal on a question of law only shall lie to the Supreme Court from any
           decision of the Labour Court.

      (2)   Any party wishing to appeal from any decision of the Labour Court on a question
            of law in terms of subsection (1) shall seek from the President who made the
            decision or, in his or her absence, from any other President leave to appeal that
            decision.
            [Subsection amended by section 18 of Act 5 of 20011. Amendment erroneously referred
            to section 94F instead of to 92F.]

      (3)   If the President refuses leave to appeal in terms of subsection (2), the party may
            seek leave from the judge of the Supreme Court to appeal.”


            The court a quo dismissed the application for leave to appeal on 27 July 2016 and

the applicant applied for leave to appeal to this Court on 4 August 2016 within the prescribed

time limit. The application was however riddled with fatal procedural irregularities prompting

the applicant to withdraw its application before MAVANGIRA JA who struck the matter off

the role with costs on 23 November 2016.



            The applicant has now approached this Court with a chamber application for an

extension of time and condonation for leave to appeal, purporting to have put its house in

order. Although the applicant now says the application before me is an application for leave

to appeal, its papers tell a different story. The title on the cover of the application reads:


      “CHAMBER APPLICATION FOR AN EXTENSION OF TIME AND FOR
      CONDONATION FOR FAILURE TO FILE APPLICATION FOR LEAVE TO
      APPEAL ON TIME”.




            Having encrypted the title of its application as one for condonation and extension

of time to file the application for leave to appeal the applicant’s founding affidavit tells a

different story. At para 7 of the affidavit the applicant clearly designates the application as
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                                                             Civil Application No. SC 737/16

one for leave to appeal. Seeking leave to appeal and seeking condonation for leave to appeal

are two different things which cannot be interpreted to mean the same.

              The designation of the application as an application for extension of time to

appeal and condonation is no fluke or a typographical error because in its founding affidavit

deposed to by its legal practitioner W.L. Chirongoma at para 7 the applicant states that:

      “The application for leave to appeal attached hereto as annexure “D” was withdrawn
      because of the defects noted above. I now make this application for the extension of the
      time within which to note the appeal and condonation. Applicant has not delayed in
      making this application for condonation and extension of time”.


              Given the applicant’s ineptitude Mr Samukange has raised irrefutable preliminary

objections.


        1. That the applicant is improperly before me because there is no application for

              condonation and extension of time seeking leave to appeal before me.

       2. That the record of proceedings before me is incomplete in that the record of

              proceedings in the court a quo is not part of the record of proceedings before me.



              The two points raised in limine by the respondent are solid and unassailable both

factually and at law. The applicant did not contest the veracity of the points raised in limine

but sought to hide behind case law which exhorts the undesirability of slavish adherence to

rules of court and technicalities. To that end the applicant sought to rely on the familiar case

of Banda v Dalny Mine SC 39/99 which is authority for the proposition that it is undesirable

to determine labour matters on technicalities. The dicta in that case has often been

misinterpreted and misapplied by counsel.



              The court in the Dalny Mine case (supra) did not outlaw the determination of

labour matters on technicalities. It merely voiced its displeasure for labour matters to be
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                                                            Civil Application No. SC 737/16

determined solely on the basis of technicalities. While it is undesirable to determine labour

matters on technicalities, where there is a serious flagrant disdain of the rules and procedure

the court may determine the matter on technicalities depending on the exigencies of each

case. Thus where the court is confronted with technicalities raised by either party, it will first

explore whether there is a way of determining the matter without resort to technicalities. If

the answer is yes, that is the way to go. If the answer is in the negative then, the court may

determine the matter on technicalities. Either way the court enjoys a discretion that must be

judiciously exercised.



            In this case having perused the record of proceedings and heard counsel, I come

to the conclusion that it is virtually impossible to determine this application on the merits

because of serious procedural irregularities. To begin with, this application is meant to be an

application for condonation of late filing of application for leave to appeal to this court and an

extension of the time within which to file the application. The applicant has however filed an

application for “the extension of the time within which to note the appeal and condonation” It

is clear that the application placed before me is convoluted and confused to such an extent

that there is no proper application before me.



            For that reason the fatally defective application cannot succeed. It is accordingly

ordered that the application be and is hereby struck off the roll.




C. Kuhuni Attorneys, applicant’s legal practitioners

Venturas and Samukange, respondent’s legal practitioners