Ronald Madhara v Fidelity Printers and Refiners (Private) Limited and Saul Ushe

### Preamble
Judgment No. SC 111/22
1
Chamber Application No. SC 207/21
---------


DISTRIBUTABLE 	(96)

RONALD     MADHARA

v

FIDELITY     PRINTERS     AND     REFINERS     (PRIVATE)     LIMITED     (2)     SAUL     USHE

SUPREME COURT OF ZIMBABWE

HARARE: 21 JULY 2021 & 14 OCTOBER 2022

L. Madhuku, for the applicant

W. Magaya, for the first and second respondents

IN CHAMBERS

MUSAKWA JA:       This is an opposed chamber application for condonation for non-compliance with r 60 (2) of the Supreme Court Rules, 2018 and for extension of time within which to appeal. The intended appeal is against a judgment of the Labour Court handed down on 25 January 2019 dismissing an application for review of the decision made by the first respondent to dismiss the applicant from employment.

The applicant seeks an order in the following terms:

The application for condonation for non-compliance with r 60 (2) of the Supreme

Court Rules, 2018 be and is hereby granted.

The application for extension of time within which to file and serve a notice of

appeal in terms of the rules be and is hereby granted.

The notice of appeal shall be deemed to have been filed on the date of this order.

There shall be no order as to costs.

BACKGROUND

The applicant was an employee of the first respondent which is a gold trading company registered in accordance with the laws of Zimbabwe. On  7  July 2015 the applicant was suspended from employment following an internal audit which established a shortfall of US$780 565.74 in the company’s books of accounts. The money was paid out to Swisspack Enterprises and Native Gold Enterprises for gold which was never deposited with the first respondent. The applicant was the accountant responsible for authorising payment to the aforementioned companies. The applicant was notified of disciplinary action being initiated against him. He was subsequently charged with violating Fidelity Printers and Refiners (Private) Limited’s Employment Code of Conduct and Disciplinary Procedure (The Code of Conduct).

More specifically, the applicant was charged with contravening the following provisions of the Code of Conduct:

Para 7.6 (f): Engaging in conduct which amounts to any of the following: theft, fraud, bribery, embezzlement, forgery, robbery, corruption, nepotism, racism or tribalism.

Para 7.6 (k): Habitual and/or substantial neglect of duties.

Para 7.6 (q):  Any act, or omission which is inconsistent with the fulfiment of the express or implied conditions of the contract of employment.

Para 7.6 (j): Gross incompetence and/or inefficiency in the performance of one’s work”.

Arising from the same facts the applicant also had criminal charges of fraud preferred against him.

On 10  July 2015, the applicant was served with a notice to attend a disciplinary hearing at the first  respondent’s premises.  The hearing was scheduled for 17 July 2015. However, the applicant’s Counsel requested for a postponement of the hearing to 20 July 2015. Counsel for the applicant also requested for the terms of the applicant’s employment contract as well as the audit reports for 2013, 2014 and the second quarter of 2015 as the allegations were based on transactions concluded during that period.

Counsel for the applicant appeared before the Disciplinary Enquiry Committee on  20 July 2015 although the minutes of the hearing erroneously recorded the date as the 13th.  The applicant did not turn up at this hearing as his legal representative submitted that he could not risk violating the terms of his bail conditions. Counsel for the applicant made an oral request for his client’s employment contract to which the first respondent’s representatives responded that this be directed to Mr Manhivi, the Human Rights Manager. The  Disciplinary Enquiry Committee acceded and moved the disciplinary proceedings to Cresta Lodge Msasa to allay the applicant’s reservations about violating his bail conditions. On 24 July 2015, counsel for the applicant addressed a letter to the chairman of the Disciplinary Enquiry Committee in which among other things he complained about the failure to be furnished with the record of proceedings of the initial hearing. Counsel also highlighted the pending issue of audit reports which had not been handed over to the applicant to prepare his defence. The chairman responded that the issues raised would be addressed by the Committee on the agreed day, which was 27 July 2015.

On the day of hearing, both counsel and the applicant were not in attendance. Unbeknown to the first respondent’s representatives, the applicant approached the Labour Court on the same day in a bid to seek a stay of the disciplinary proceedings. After a delay of 45 minutes, the Disciplinary Enquiry Committee resolved to proceed with the disciplinary hearing. The applicant was found guilty on all the charges except the one relating to inefficiency (clause 7.6 (j)). The Disciplinary Enquiry Committee unanimously recommended the applicant’s dismissal from employment. On 5 August 2015 the Disciplinary Enquiry Committee informed the applicant of the outcome of the disciplinary hearing. The applicant was invited to file written submissions in mitigation within 48 hours. On 12 August 2015, the applicant was served with his letter of dismissal after failing to tender mitigation as requested. The letter contained reasons for dismissal and highlighted that the applicant had a right to appeal against the verdict to the Chief Executive Officer within 14 working days.

The applicant disregarded the right of appeal and approched the court a quo by way of review. He contended that the Committee lacked the requisite quorum to proceed with the hearing. The court a quo in its judgment held that the applicant waived the right to challenge the conduct of the disciplinary proceedings on account of not having attended the hearing. The applicant’s averment that access to evidentiary particulars was denied was dismissed due to lack of evidence. Thus, the  court a quo, proceeded to dismiss the application for review with costs.

The learned judge in the court a quo granted  the applicant leave to appeal on 25 September 2019 whereafter the applicant noted an appeal to this Court on 19 May 2020. The applicant filed a defective notice of appeal in that he sought for an order for reinstatement without an alternative prayer for damages and he did not indicate the name of the Judge a quo ex facie the notice. At the hearing of the appeal on 28 May 2020, the applicant’s counsel prayed (with the consent of respondents’ counsel) that the matter be struck off the roll with the applicant paying wasted costs and the court granted the prayer. The applicant then lodged the present application which the respondent strenuously opposed.

APPLICANT’S SUBMISSIONS

At the hearing of the application, Mr Madhuku, for the applicant submitted that, in an application of this nature, an applicant must explain reasons for the delay and demonstrate prospects of success. The reason for the delay tendered by the applicant was that his legal practitioners filed a defective notice of appeal whereas the applicant believed that a proper notice had been filed. Counsel further submitted that the applicant’s legal practitioners made two mistakes thus, not seeking an alternative relief for damages and that in the court a quo, the applicant’s legal practitioner was seeking to set aside the proceedings on review. On the prospects of success, he submitted that the applicant had an arguable case on appeal.

RESPONDENTS’ SUBMISSIONS

In opposing the application, Mr Magaya, for the respondents, submitted that the length of delay was almost two years and the explanation for delay was attributed to the legal practitioner. He further argued that the nature of defect on the notice of appeal was not explained in the founding affidavit. He submitted that the omission of the name of a Judge in a notice of appeal was inexcusable. He argued that the sins of the legal practitioner ought to be visited on the applicant. Moreover, he submitted that the applicant had no prospects of success.

ISSUE FOR DETERMINATION

The sole issue for determination is whether or not the applicant satisfied the requirements for an application for condonation and extension of time to appeal.

APPLICATION OF THE LAW

It is trite that in an application for condonation and extension of time to appeal the applicant is required to provide a reasonable explanation for his failure to prosecute the matter timeously and to demonstrate that he has reasonable prospects of success on appeal. This position was succinctly expressed in the case of Katsande v Katsande SC 40/19 by PATEL JA (as he then was ) as follows:

“In an application for condonation and extension of time to appeal the applicant is required to provide a reasonable explanation for his failure to prosecute the matter timeously and to demonstrate that he has reasonable prospects of success on appeal.”

One must be candid with the court in their explanation in order to satisfy the court that the explanation is reasonable and that there are prospects of success on appeal if granted the indulgence. In the present case, the explanation for the delay is attributed to the applicant’s legal practitioner who filed a defective notice of appeal. The notice of appeal was defective in that the name of the judge a quo was not stated and the relief sought was incompetent as a party cannot seek reinstatement without an alternative of damages. The requirement to seek damages in lieu of reinstatement arises from s 89 (2) (c) (iii) of the Labour Court Act [Chapter 28:01]  which provides as follows:

“ (c)	 in the case of an application made in terms of subparagraph (ii) of subsection (7) of   section ninety-three, make an order for any of the following or any other appropriate order

(iii) 	reinstatement or employment in a job: Provided that— (i) any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment”(my  emphasis)

This Court has already determined the issue in the case of ZB Bank v Masunda  SC 48/16 at p 9, wherein Guvava JA stated the following:

“In any event the order of the court a quo was incompetent as it sought to order the National Employment Council to reinstate the respondent without making a corresponding order for damages in the event that reinstatement was no longer possible…an order for reinstatement must have a corresponding order for damages in the event that reinstatement is no longer possible.”(my  emphasis)

I come to the conclusion that the explanation given is inadequate as the nature of the defect in the initial notice of appeal amounts to negligence on the part of the applicant’s legal practitioners.  In the case of Machaya v Muyambi SC 4/2005 at p 4 this Court adreesed the issue of negligence exhibited by legal practitioners. This Court had this to say:

“The time has come for sterner measures to be taken of applications of this nature where negligence, tardiness, and disdain for the rules of court is exhibited by legal practitioners.   The often quoted passage from the judgment of STEYN CJ in Saloojee & Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141 C–E bears repeating here, namely, that:

“There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.   To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court.   Considerations ad misericordiam should not be allowed to become an invitation to laxity.   In fact this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney.   The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.””

And at F-H:

“A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it.   If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf. Regal v. African Superslate (Pty.) Ltd., supra  at p 23 i.f.) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney.   If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself.   That has not been done in this case.   In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success”. (my emphasis)

Further, in the case of Dzvairo v Kango Products (Pvt) Ltd SC 35/2017 at p 5, this Court stated the following  after the applicant sought to rely on the negligence of his erstwhile legal practitioners for his non-compliance with the Rules:

“With regard to the appellant’s allegation that it was the incompetence of his erstwhile legal practitioner that led to the excessive delays the court a quo, correctly, in my view, held that even where this is the case one cannot seek to insulate himself using such a defence.  A litigant will not be completely absolved for the incompetence of his or her legal practitioner.” (my emphasis)

The applicant’s counsel argued that the sins of a legal practitioner ought not to be visited on the client. With reference to the above authorities and the case of Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998(2) ZLR 249 (S) it is clear that a litigant cannot be completely absolved of the incompetence of his or her legal practitioner. Although a supporting affidavit was deposed to by the errant legal practitioner, it does not improve the situation. The legal practitioner (Mr Gift Nyandoro) attributed his error to his understanding of the law at the relevant time. It may be noted that Mr Nyandoro is a senior legal practitioner who was expected to be familiar with the particular aspect of specifying an alternative prayer to reinstatement. As regards the omission of the Judge’s name, Mr Nyandoro described it as a typographical error that went undetected.

I am of the view that the lack of diligence exhibited by the applicant’s legal practitioner is sufficient to render this matter unworthy of consideration irrespective of the prospects of success.

Despite the view I take on the error by the applicant’s legal practitioner, I have considered the prospects of success and I consider them to be slim.  It is settled that where no acceptable explanation for non-compliance with the rules has been given by an applicant seeking condonation for the late noting of an appeal, one must at the very least show very good prospects of success if the indulgence is to be granted. See Mahachi v Barclays Bank of Zimbabwe SC 6/06 and Kombayi v Berkhout 1988(1) ZLR 53(SC). The applicant is required to show that he has an arguable case on appeal.  In Essop v S [2014] ZASCA 114, the court aptly stated the following at para 6:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.” (my emphasis)

See also the Dzvairo case supra.

In his heads of argument in the court a quo, the applicant challenged the composition of the committee. In advancing this argument, the applicant relied on the case of Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 and Chikanda v United Touring Company Ltd SC 7/99.  According to the applicant, there were no workers’ representatives to constitute and reflect the will of the code which rendered the proceedings a nullity. It was the respondent’s argument that the workers’ committee refused to participate in the hearing and the remaining members proceeded to sit in terms of the first respondent’s code. Section 7.8.2 (a) of the same code provides as follows:

“… in a situation where the disciplinary hearing meeting is adjourned due to lack of quorum those present when the hearing reconvenes will form a quorum and proceed with the hearing. Human resources appoints a company representative, a secretary, two employer representatives and a Chairperson of the hearing of the meeting.”

The import of the above provision is that the code of conduct allows a hearing to proceed with the members present where they do not constitute the quorum stipulated in the code of conduct. In any event, as stated in the Moyo case supra, an applicant who chooses to abscond a hearing cannot be heard to cry foul of the outcome or composition of the committee as he forfeits the right to challenge the proceedings.

I was not persuaded by submissions made on behalf of the applicant. Counsel for the applicant argued that the applicant was not given the documents required to prepare his defense. The applicant requested the documents and on the same date he received a response that this matter would be dealt with by the committee. He did not appear on the date of hearing. Clearly it cannot be the case that the hearing should not have proceeded because the applicant was denied access to the documents he had requested. Furthermore, the applicant’s counsel sought to rely on the case of TM Supermarkets (Pvt) Ltd v Chimhini SC41/19. The Chimhini case is distinguishable from the present matter. In the Chimhini case, the parties had not agreed on the hearing date, there was bias on the part of the hearing officer and the appellant had actually attended the hearing but later walked out of the hearing with his counsel.

In the present case, the applicant chose not to attend the hearing thus waiving his right to challenge the proceedings. The applicant claimed that he failed to locate the disciplinary committee at the venue of the hearing. This is hard to believe due to the fact that no evidence was tendered to corroborate the claim. At the very least the applicant ought to have inquired at the reception venue and availed such evidence. Even after receiving the outcome of the hearing on 5 August 2015 that he had been dismissed from employment, the applicant did not indicate that he had failed to locate the venue. I agree with the respondent that this argument was an afterthought.

Suffice to mention that, in terms of s 7.9 of the first respondent’s Code of Conduct, a disciplinary hearing can be held in absentia where the employee has been served with the notification to attend the hearing and fails to turn up without reasonable cause. The applicant was aware of the date, time and venue of the hearing. The disciplinary committee was therefore, not wrong in proceeding with the hearing in the absence of the applicant. It is an established principle that a party cannot challenge the decision of an employer when he deliberately chooses not to attend the hearing. This point was made by this Court in the case of Moyo v Rural Electrification Agency SC 4/14 where it was held as follows:

“In our view the appellant, by deliberately absenting himself without leave from the hearing waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew he would not be available on the date of the hearing. In these circumstances we do not feel that the failure by the respondent to strictly comply with the regulations operated to vitiate the disciplinary proceedings.”

The above principle was also stressed in the Chimhini case supra. Another case in which the same principle was reiterated is the case of Masvikeni v National Blood Service Zimbabwe SC 28/19. The issue of waiver is relevant to discuss as the applicant seeks to challenge the disciplinary proceedings which he absconded. The requirements of a waiver at law are common cause. In Harry v Director of Customs and Excise 1991 (2) ZLR 39 BLACKIE J ruled that:

“To establish waiver, the plaintiff must show an express abandonment or surrender of rights (or at least conduct which is plainly inconsistent with their enforcement) with full knowledge and appreciation of those rights.” See also Minister Van Justice v Swaneopoel 1968 (1) SA 347, Patel v Controller of Customs and Excise 1982 (2) ZLR 82.

The following passage in the case of Munyuki v City of Gweru 1998(1) ZLR 182(S) at 186 F-G is applicable to this case with equal force:

“Although it is a fundamental legal principle that an employee charged with misconduct by the employer has the right to be heard, I have no difficulty in accepting that such right may be abandoned or waived. There is no compulsion upon the employee to attend the hearing…If the employee does not attend, however, he abandons his right to be present and the hearing may proceed in absentia. See Forestry Commission v Moyo 1997(1) ZLR (S) at 262”

In a nutshell, the applicant chose not to attend the hearing thereby losing his right to challenge the disciplinary proceedings. The effect of the above authority is that the applicant has no prospects of success on appeal.

DISPOSITION

The poor preparation of the initial notice of appeal blights the reasonableness of the condonation sought. In addition, the fact that the applicant defaulted the disciplinary hearing dims his prospects of success on appeal. As is the practice costs will follow the cause.

Accordingly, it is ordered as follows: -

The application for condonation of non-compliance with the rules and extension of time within which to appeal be and is hereby dismissed with costs.

Hamunakwandi & Nyandoro Law Chambers, applicant’s legal practitioners

Coghlan, Welsh & Guest, 1st and 2nd respondents’ legal practitioners