Court name
Supreme Court of Zimbabwe
Case number
SC 23 of 2002
Civil Appeal 238 of 2001

Small Enterprises Development Corporation v Chemhere (238/2001) (SC 23 of 2002, Civil Appeal 238 of 2001) [2002] ZWSC 23 (08 May 2002);

Law report citations
Media neutral citation
[2002] ZWSC 23



















Judgment
No S.C. 23\2002


Civil
Appeal No 238\2001














SMALL
ENTERPRISES DEVELOPMENT CORPORATION v DAVID
CHEMHERE











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, EBRAHIM JA & ZIYAMBI JA


HARARE
FEBRUARY 28 & MAY 9, 2002








P.
Nherere
,
for the appellant





E.
Matinenga
,
for the respondent








EBRAHIM JA:
Until 1 April 1999, the respondent was employed by the appellant.
In June 1998 he was charged with acts of misconduct.
Disciplinary
proceedings were taken under the appellant’s code of conduct. The
proceedings before the disciplinary committee
were concluded in
December 1999 and the decision was that the respondent was guilty as
charged and should be demoted. The respondent
appealed to the
appellant’s appeal board which held a fresh hearing in March 1999.
It confirmed the finding of guilt, but altered
the penalty to one of
dismissal. The respondent was advised of the decision on 26 March
1999.





In terms of
s 10(1) of the Labour Relations (Settlement of Disputes) Regulations
1993 (SI 30 of 1993), an appeal to the Labour Relations
Tribunal
“shall be noted within fourteen days of the receipt of the
decision, determination, order or direction appealed against”.

The respondent should thus have noted an appeal to the Tribunal by 9
April 1999. He did not do so, but instead brought the Board’s
decision on review to the High Court. He was within the time limits
for doing so. The matter was heard on review on 7 October
1999.
The application for review was dismissed on the grounds that the
respondent had:-






“Not
discharged the
onus
on him to show that this is a proper case to this court to deal with
the matter on review without him having resorted to his domestic
remedies.”









The merits of
the matter were thus not dealt with by the High Court.





On
7 January 2000, nearly three months after the High Court’s decision
was handed down, an application was filed with the Labour
Relations
Tribunal, seeking condonation of the late noting of an appeal against
the appeal board’s decision. Seven months later,
the acting
Chairman of the Tribunal granted the condonation sought. In doing
so, he acted under s 26 of the Regulations previously
referred to.
He expressed the view that the delay, though inordinate, was not
wilful or deliberate. On the prospects of success,
he was of the
view that because the penalty imposed by the disciplinary committee
was not an issue that had been placed before the
appeal board, the
board arguably should not have interfered with the penalty. No
opinion is expressed about the prospects of success
on the facts.






The
appellant argues that while the Acting Chairman’s decision was a
discretionary one, it was so unreasonable as to amount to
an improper
exercise of his discretion and that relevant considerations were not
properly taken into account. Mr
Nherere
rightly cited
ZFC
Ltd v Geza

1998 (1) ZLR 137 (S), where it was held that the exercise of a
discretion in respect of condonation can only be interfered with
where
it is grossly unreasonable, capricious or
mala
fide
.
There is no suggestion of
mala
fides
,
nor could there be.






Mr Nherere
argues that the application for review did not preclude the
respondent from noting his appeal, or
vice
versa
.
He cited
Chikonye
& Anor v Peterhouse

1999 (2) ZLR 329 (S) at 331 as authority for this submission. In
that case, though, the facts were to some extent reversed, the
employer had noted an appeal to a senior labour relations officer
against a ruling by a labour relations officer, but then, while
the
appeal was still pending, had applied to the High Court for a
declaration that the contracts had been terminated by the effluxion
of time. The High Court judge heard the application and decided in
the employer’s favour. The Supreme Court was of the view
that it
would have been preferable for the High Court to have declined
jurisdiction, on the grounds that the parties’ domestic
remedies
had not been exhausted. It did state, though, that the employer was
obliged to note an appeal, to keep its position open
while it applied
to the High Court. The case of
Rauties
Transport v Voorsitter, Plaaslike Padvervoerraad

1983 (4) SA 146 (W) was cited as authority for the proposition that
the noting of an appeal does not deprive the applicant of his
right
to take the same decision on review.





The
respondent argues otherwise: that one cannot both note an appeal
against a decision and take the decision on review; one must
elect
one course or the other.





I
do not believe it is necessary to decide this point. It must be
accepted that the respondent, on legal advice (which may have
been in
error), elected to pursue the avenue of review rather than appeal.
It is not clear to me why this advice was given. However,
the
application for review was dismissed, but not on the merits. The
High Court, in effect, held that the respondent should have
appealed.
This he proceeded to do, although there was a delay of some three
months after the date of the dismissal of the application
for review.
The respondent gives an explanation for it. This explanation
relates to the confusion that seems to occur all too
often when the
legal practitioner who has been handling a matter leaves the firm and
his cases are allocated to other practitioners
in the firm. Matters
get overlooked, and things are not completed as expeditiously as they
should be, or might have been had the
original practitioner not left.
The Acting Chairman considered that the explanation given was an
acceptable one. I do not consider
that he acted grossly
unreasonably in so holding, even if I might have been inclined to be
less generous to the respondent.






As to the
prospects of success, without having sight of the appellant’s
disciplinary code, it is not easy to state whether the
appeal board
could increase the penalty. Assuming it could, though, it seems to
have done so without any request by the appellant
and without asking
the respondent to make representations on the matter. My
prima
facie

view is that if the board was minded to increase the penalty, it
should have so indicated, and allowed representations to be made.

The finding by the Acting Chairman that there is a reasonable
prospect of success cannot, in the circumstances, be said to be
irrational.





In
the result, therefore, I cannot hold that the Acting Chairman acted
irrationally, even if I would not have condoned the late
noting of
the appeal. The appeal against his decision must, therefore, be
dismissed with costs.




















CHIDYAUSIKU
CJ: I agree











ZIYAMBI
JA: I agree

















Scanlen
& Holderness
,
appellant's legal practitioners





Kantor
& Immerman
,
respondent's legal practitioners