Zimbabwe Anti Corruption Commission v Gibson Mangwiro & Another

### Preamble
Judgment No. SC 94/19
Chamber Application No. 203/19
1
REPORTABLE
(89)
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REPORTABLE	(89)

ZIMBABWE     ANTI     CORRUPTION     COMMISSION

v

GIBSON     MANGWIRO     (2)    CHRISTOPHER     CHISANGO

SUPREME COURT OF ZIMBABWE

HARARE:	20 AUGUST 2019 & 25 NOVEMBER 2019

G.R.J. Sithole with G. Gomwe, for the applicant

K. Kachambwa with M. Mtlongwa, for the respondents

IN CHAMBERS

MAVANGIRA JA:	This is an application that is headed “Chamber Application for Condonation of Late Filing of Application for Leave to Appeal in terms of Rule 61 of the Supreme Court of Zimbabwe Rules 2018.”

Background

The respondents were employed by the applicant. On 14 June 2016 they were brought before a disciplinary committee on allegations of misconduct. They were found guilty. This culminated in their discharge from employment on 14 July 2016.

Aggrieved by the decision the respondents filed with the Labour Court (the court a quo) an application for review of the proceedings. The court a quo set aside the dismissal of the respondents. It remitted the matter for a rehearing before “a properly constituted disciplinary committee.” It also ordered that the respondents “revert to the status quo ante which was suspension pending the disciplinary hearing.”

Aggrieved by the decision of the court a quo, the applicant sought the court a quo’s leave to appeal against its decision to this Court. On 17 August 2018 the court a quo dismissed the application for leave to appeal. On 28 August 2018 the applicant filed with the Supreme Court a chamber application for leave to appeal, its right to do so deriving from s 92F (3) of the Labour Act, [Chapter 28:01]. The application was set down for hearing on 19 October 2018 but was on that date struck off the roll.

On 5 April 2019 this application was filed. The respondents opposed it. The matter was set down for hearing on 26 July 2019 but was only eventually heard on 20 August 2019.

THIS APPLICATION

Preliminary Issue

At the onset of proceedings Mr Kachambwa, for the respondents, raised what he termed a composite preliminary point to the effect that the matter was not properly before the court and must be struck off the roll with costs.

Mr Kachambwa submitted that r 61 of the Rules of this Court in terms of which the applicant has purported to bring this application is inapplicable in this matter as the rule only relates to applications for condonation of failure to note an appeal timeously and extension of time for instituting the appeal. He submitted that r 61 relates to situations where leave to appeal (where necessary) would have been granted in terms of r 60 and a party fails to file its notice of appeal within the time frame stipulated in r 60 (2). Such a party would then have recourse to r 61 and make an application in which it shows special circumstances why its failure should be condoned and extension of time granted.

Mr Kachambwa further submitted that the applicant ought to have proceeded in terms of the relevant provisions in Part VI of the Rules. He also made reference to Part VII headed “Miscellaneous Appeals and References” with particular emphasis on r 64 which provides that in the case of a lacuna the provisions of Part VI shall apply.

The second aspect of the preliminary point was that the applicant’s founding papers do not set out factual averments for motivation of extension of time thereby compounding the impropriety of the application.

Mr Sithole on the other hand submitted that the application is properly made in terms of r 61 and is properly before the court. He submitted that r 61 provides for a “composite or in-series” application and is not only meant for situations where leave to appeal has been granted. He further submitted that what the applicant seeks from this Court in this application is “condonation and extension of time to seek leave to appeal.”

If r 61 is inapplicable as contended on behalf of the respondents then this application ought to be struck off the roll as the court would have no jurisdictional basis on which to relate to it on the merits.

Analysis

Rule 61 provides:

“Applications for extension of time to appeal.

61. Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown by w ay of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by rule 60 or by the enactment concerned, for instituting an appeal.”

The context of r 61 is as a sequel to r 60 which reads:

“Time within which notice to be given

60.(1)	Subject to the provisions of r 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with the provisions of rule 59 within 15 days of the date of the decision appealed against.

(2) 	An appeal from a decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01] shall be delivered and filed with a registrar, within 15 days from the grant of leave to appeal by the Labour Court or, where such leave is refused, within 15 days from the grant of leave by a judge:

Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within ten days of the refusal to grant leave.”

The right to make an application pursuant to the above quoted proviso to r 60 (2) derives or emanates from s 92F (3) of the Labour Act which provides:

“(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 leave to appeal that decision.

(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.”

According to the applicant’s founding affidavit, the striking off by this court on 19 October 2018 of the application that had been timeously filed on 28 August 2018 was by consent of the parties and it was for the reason that “the appeal record … was not attached to the application.” That application having been struck off the roll, the applicant was well within its rights to approach this Court again as it has done by way of the instant application. Unfortunately, however, the applicant has approached this court in terms of r 61 as already indicated above.

Rule 61 provides for an application to be made for the court to “condone late noting of the appeal and extend the time laid down.” There is no reference to condonation of failure to apply for leave to appeal timeously. Neither is there any provision in Part VII under which r 61 falls, that provides for such. However, r 64 (in Part VII) provides:

“In the event of any casus omissus in this Part, the provisions of Part VI shall apply, mutatis mutandis.”

In Part VI which is headed “Applications for leave to appeal or extension of time to appeal”, r 43 (3) provides as follows:

“An application for condonation of non-compliance with the rules and for extension of time in which to appeal shall have attached to it a notice of appeal containing the matters required in terms of subrule (1) of rule 37 and an affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time. Counsel may set out any relevant facts in a statement. Where such application is in relation to a matter in which leave to appeal is necessary the application shall, in addition, comply with the requirements of subrule (2).”

Subrule (2) reads:

“An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it –

(a)…

(b)…

(c)…”

Rule 43 (3) of Part VI applying herein mutatis mutandis would provide for the making of an application for condonation of non-compliance with the proviso to r 60 (2), viz, the failure to apply for leave to a judge of this Court within ten days of the refusal to grant leave by a judge of the court a quo.

Subrule (8) of r 43 is also pertinent in its provision that:

“If leave to appeal or condonation and extension of time to appeal is granted, the appeal shall be deemed to have been instituted in accordance with the notice of appeal filed in the application on the date on which leave is granted, unless the judge otherwise orders.”

I might comment in passing on the draft notice of appeal filed together with the application. It seeks to appeal against the judgment of the court a quo dismissing the applicant’s application for “upliftment of bar and condonation of late filing of an application for leave to appeal to the Supreme Court” (sic). The ultimate relief sought, besides being improperly drafted, is for the setting aside of the order refusing leave to appeal and purportedly the substitution thereof with an order that reads:

“The application for upliftment of bar and condonation of filing of application for leave to appeal to the Supreme Court be and is hereby granted.” (sic)

The notice of appeal is therefore not meant to institute an appeal against the decision of the court a quo in the main matter for which leave to appeal was originally sought before court a quo. The applicant seems to labour under a misconception or probably confusion as to the course it ought to follow. In essence the applicant seeks before a judge of this Court condonation for its non-compliance with r 60 upon which a judge of this Court will then allow it to file its application for leave to appeal within five days of this court’s order.  This accords not only with Mr Sithole’s submission cited earlier but with the terms of the draft order that it prays for in this application which reads as follows:

“IT IS ORDERED THAT

The non-compliance with rule 60 of the Supreme Court Rules be and is hereby condoned.

Application for condonation of late filing of application for leave to appeal in terms of Rule 61 of the Supreme Court Rules be and is hereby granted.

The applicant is to file its application for leave to appeal within 5 days of this order.

That there be no order as to costs.”

The applicant seems unclear as to the correct procedure to be followed. Its application for leave to appeal having been dismissed by the court a quo, it then applied to this Court for the leave that it supposedly craved. Its first application to this Court was allegedly timeously made but unfortunately for the applicant it was struck off the roll. It then filed this application. The “disconnect” now appears from the relief sought herein. The applicant now seeks to go back to the court a quo to seek the very leave that s 92F (3) and the proviso to r 60 (2) require that it seeks from this Court.

In University of Zimbabwe v Jirira & Another SC 12/18 BHUNU JA aptly stated:

“In terms of s 92F (3) of the Labour Act [Chapter 38:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter   on the merits as if it was fresh application before him/her.”

On a view of the applicable law as provided in s 92F as well as r 60 (2) it is clear that when a party seeks before a judge of this Court leave to appeal, such leave is for the purpose of appealing against the decision in the main matter and not against the refusal to grant leave. This court cannot possibly be asked to grant leave to the applicant for the applicant to go back to the court a quo for the purposes of seeking leave to appeal as that would be an absurd outcome.

The application in casu is fundamentally flawed. It is not properly before me as it is predicated on an inapplicable rule and ought to be struck off the roll for that reason. The applicant ought to have been guided by r 43 (3) and ought to have filed a composite application for firstly, condonation and extension of time within which to apply for leave to appeal to a judge of the Supreme Court and secondly, leave to appeal.

In its opposing papers the respondent’s stance was that the application was devoid of merit and ought to be dismissed with costs on the higher scale. In oral submissions at the hearing at which only the preliminary point was argued Mr Kachambwa urged the court to strike the matter off the roll with an order of costs in favour of the respondent. The preliminary point that was raised at the hearing had not been raised in the opposing papers. It is trite that costs will follow the cause. However, I am unable to find any justification for the exercise of my discretion that would justify an award of costs on the higher scale in favour of the respondent.

Rule 61 being inapplicable, this application is not properly before me. It must be and it is hereby struck off the roll with costs on the ordinary scale.

Mutamangira & Associates, applicant’s legal practitioners

Chambati, Mataka & Makonese, respondents’ legal practitioners