REPORTABLE
(13)

Judgment
No. SC 16/04

Civil
Appeal No. 116/03

AIR
ZIMBABWE (PRIVATE) LIMITED v

(1)
TARIRO PATSIKADOVA (2) EDMORE CHINOWAITA

SUPREME
COURT OF ZIMBABWE

CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA

HARARE,
JANUARY 20 & MARCH 18, 2004

R
M Fitches, for the
appellant

The
respondents in person

CHEDA
JA: The two respondents were employed by the appellant. They
were charged with misconduct and, after a hearing, were
dismissed.

The
respondents applied to the High Court for a declaratory order to the
effect that their discharge was null and void. The application
was
based on the following –

(a) The Code of Conduct used by
the appellant had not been registered in terms of the Labour
Relations (Employment Codes of Conduct)
Regulations, 1990;

(b) The disciplinary committee
which discharged the respondents usurped the functions of the hearing
committee by hearing the matter
itself;

(c) The hearing committee was
improperly constituted, in that it was not chaired by a head of
division and some members thereof were
not employees of the
appellant;

(d) The charges were not properly
formulated, in that it was not clearly indicated how the factual
allegations constituted misconduct;
and

(e) The decision was not based on
the allegations and the evidence.

The
High Court, after dealing with the procedural defects, ordered that:

“1. The
discharge of the applicants is set aside;

2. The respondent reinstate the
applicants without loss of benefits and pay them their full salary
and benefits from the date of their
discharge;

3. The
respondent pay the applicants’ costs.”

The
above judgment was handed down on 26 March 2003.

On
14 April 2003 the respondent, now the appellant, filed a notice
of appeal. The grounds of appeal were as follows -

(1) The learned judge erred in
finding that the Code of Conduct for Air Zimbabwe Corporation was not
applicable to the respondents,
effectively ruling that the appellant
had no Code of Conduct in terms of which it could internally
discipline its workforce; and

(2) The learned judge erred in
finding that factually there was no evidence that the respondents
were guilty of the charge of misconduct,
i.e. acting in a manner
which brings, or is likely to bring, unjustified scorn or disrepute
upon the Corporation’s image, yet both
the respondents confessed to
it.

The background to this matter
is a cause for concern. The manner in which the appellant handled
the matter suggests that procedural
requirements were simply ignored
at different stages of the case.

When
the application by the respondents was served on it, no action was
taken to oppose the matter. As a result, default judgment
was
entered against the appellant.

The appellant then applied for
rescission of the judgment. Once the application for rescission was
filed, no steps were taken
by the appellant until the respondents set
the matter down after realising that the appellant was doing nothing
about it. The default
judgment was eventually rescinded.

The
matter then went to trial and judgment was granted against the
appellant. The appellant then filed a notice of appeal.

By
letter dated 19 May 2003 the registrar of this Court called upon
the appellant to file heads of argument within fifteen
business days.
The appellant did not do so.

By
letter dated 26 August 2003 the registrar of this Court pointed
out to the appellant that it had been advised again on 22 July
2003 to file heads of argument but it had not done so. It was
advised that the appeal was therefore deemed to have been abandoned
and accordingly dismissed. Again, according to the affidavit of the
first respondent, the appellant did nothing until the respondents
sought to enforce the judgment they obtained.

On
4 July 2003, in seeking reinstatement of its appeal by way of
chamber application, the appellant had asked to be allowed
to file
its heads of argument within fifteen days of the granting of the
order. The application was successful. The appellant
then did
nothing about filing the heads of argument. It now claims that they
had not been informed of the outcome of the application,
yet it never
checked to find out if its chamber application was successful. That
is why the registrar had to call upon them again
on 22 July 2003
to file its heads of argument.

When
the appellant realised that the appeal was set down for hearing,
again it failed to file its heads of argument timeously.
It filed
them late, adding that at the hearing of the matter an application
would be made to the Court for condonation of the late
filing of the
heads of argument.

The affidavits filed on the
issue of condonation, and the information therein, are such that I am
not satisfied that the appellant
has given reasons that can be
acceptable to the Court for its failure to comply with the Rules of
this Court. The failure to do
so was consistent all along from the
very beginning of this matter.

It is not correct to say that
the Court should not penalise the appellant for the delay by its
legal practitioners in a case like
this because even the appellant
itself admits filing away some documents without referring them to
the legal practitioners and often
did nothing in the form of a
follow-up. Accordingly, both the appellant and its legal
practitioners are to blame.

In P E
Bosman Transport Works Committee and Ors v Piet Bosman Transport
(Pty) Ltd 1980 (4) SA
794 (AD) it was held at p 799 that:

“In
a case such as the present, where there has been a flagrant breach of
the Rules of this Court in more than one respect, and where
in
addition there is no acceptable explanation for some periods of delay
and, indeed, in respect of other periods of delay, no explanation
at
all, the application should, in my opinion, not be granted whatever
the prospects of success may be.”

In Saloojee
and Ano NNO v Minister of Community Development
1965 (2) SA 135 (AD) at p 138 the court held as follows:

“It
is necessary once again
to emphasise, as was done in Meintjies
v HD Combrinck (Edms) Bpk
1961 (1) SA 262 (AD) at p 264, that condonation of the
non-observance of the Rules of this Court is by no means a mere
formality.
It is for the applicant to satisfy this Court that there
is sufficient cause for excusing him from compliance, and the fact
that
the respondent has no objection, although not irrelevant, is by
no means an overriding consideration …”.

In Commissioner
for Inland Revenue v Burger
1956 (4) SA 446 (AD) at p 449 and in Meintjies’
case supra
it was held that:

“… an
appellant should, whenever he realises that he has not complied with
a Rule of Court, apply for condonation without delay.”

The
appellant did not do so in this case, even when it was advised of the
need to file papers and what would happen if it failed
to do so.

On
the merits, and without going into details about the grounds for
appeal, it is clear that the charge against the respondents
did not
tie up with the one stated in the Code of Conduct. The charge read:

“… acting
in a manner which brings or is likely to bring unjustified scorn or
disrepute upon the Corporation’s image,
p 4, item 3(1), abuse of staff travel/cargo carriage
concessions as per Staff Regulations Manual.”

Nothing
specific is alleged. The respondents were not told how their
carrying of cigarettes could bring unjustified scorn or disrepute
upon the appellant’s image. It is not clear how the carrying of
cigarettes is said to offend against staff travel/cargo carrying
concessions as per the Staff Regulations Manual.

The
respondents were entitled to know the nature of the breach of the
Code of Conduct they had to answer.

We
are not told what the Staff Regulations provide. My understanding
of cargo carriage concessions is that the respondents could,
as
members of staff, be allowed cargo up to a certain weight, or weight
exceeding the general limit for each person or passenger,
but without
any details it is not possible to establish what the breach was in
this case.

I
am of the view that even on the merits the appeal is not likely to
succeed.

At
the disciplinary hearing the respondents were asked about smuggling
cigarettes. This was not proper, as there was no offence
of
smuggling cigarettes according to Customs. The respondents said
they were going to pay duty in Mauritius. Taking the cigarettes
out
of Zimbabwe did not amount to smuggling.

I
am not persuaded that the appellant has made out a case for
condonation to be granted. I believe the case would fail even on
the merits. Accordingly, condonation of the late filing of heads of
argument is refused.

The
appeal is dismissed with costs.

CHIDYAUSIKU
CJ: I agree.

GWAUNZA
JA: I agree.

Sawyer
& Mkushi,
appellant's legal practitioners