Court name
Supreme Court of Zimbabwe
Case number
SC 1 of 2005
Civil Appeal 198 of 2002

Ganda and Others v First Mutual Life Assurance Society (98/02) (SC 1 of 2005, Civil Appeal 198 of 2002) [2005] ZWSC 1 (23 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 1







REPORTABLE
ZLR (1)



Judgment No. SC. 1/05


Civil
Appeal No. 198/02









PROSPER
GANDA AND THIRTEEN OTHERS v





FIRST
MUTUAL LIFE ASSURANCE SOCIETY








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & MALABA JA


HARARE,
JANUARY 10 & 24, 2005








A M
Gijima
, for the appellants





No
appearance for the respondent







SANDURA JA: This is an appeal against a judgment of the Labour
Relations Tribunal (“the Tribunal”) (now the Labour Court)
which
dismissed with costs the appellants’ application for the
condonation of the late noting of their appeal to the Tribunal.





The
background facts are as follows. In July 1998 the appellants, who
were employed by the respondent (“the Society”), resorted
to
collective job action in order to redress certain grievances. They
were subsequently charged with misconduct in terms of the
Society’s
Code of Conduct (“the Code”).





Thereafter,
they appeared before a hearing officer, who found them guilty and
recommended that they be dismissed. They then appealed
to the
Society’s chief executive officer, but the appeal was not
successful. The chief executive officer accepted the hearing
officer’s findings and recommendation, and terminated the
appellants’ employment. Some of the appellants were dismissed on
31 August 1998 whilst the others were dismissed in the middle of
September 1998.





Subsequently,
on 10 December 1998 the appellants, through their legal
practitioner, filed a court application in the High Court
seeking a
review of the chief executive officer’s decision and the setting
aside of their dismissal. That application was heard
and dismissed
with costs on 9 February 2000 on the ground that the appellants
should have exhausted their domestic remedies
before approaching the
High Court.





Thereafter,
on 5 July 2001 the appellants filed an application in the
Tribunal for the condonation of the late noting of their
appeal
against the termination of their employment. That application was
heard by the Tribunal on 8 March 2002 and was dismissed
with
costs on 29 April 2002 on the ground that the appellants had not
given any reasonable explanation for their failure to
note the appeal
timeously.





Aggrieved
by that decision, the appellants appealed to this Court.





The
appellants’ failure to note the appeal timeously was explained by
one of the appellants in his affidavit, an affidavit with
which the
rest of the appellants associated themselves. The relevant part
reads as follows:







“2. On or around the 5th August 1998 I, together
with the other applicants hereto, were (sic) dismissed by the
respondent owing to allegations of misconduct. We challenged these
dismissals by way of appeals and these appeals
were thrown out on or
around the 31st August 1998.





3. We took
the matter to the High Court by way of an application for review in
February 1999 (December 1998). The High Court ruled
that we should
first exhaust domestic remedies before approaching the High Court for
the remedy we were seeking.






We then instructed our then legal practitioners, Dube, Manikai &
Hwacha, to note an application for condonation for late noting
of
appeal to the Labour Relations Tribunal. Affidavits in pursuance of
this application were duly drawn in our names and we duly
instructed
our legal practitioner, Mr S.V. Hwacha, to lodge the said
application with this Honourable Court. I have attached
hereto a
copy of my own affidavit duly drawn and commissioned in May 2000 as
Annexure ‘B’ hereto.







4. All along the applicants hereto and I as a representative of the
applicants was (sic) under the impression that the said
application had been duly lodged with this court, having satisfied
all the requirements for the
lodging of the application. It was
only on or around the 21st May 2001 that (when?) I
made an inquiry at the Labour Relations Tribunal that I was advised
that there was no such application
pending in this Honourable Court.
Thereafter, I advised my trade union as well as my colleagues of
this position. The trade union
then made a follow up with Mr Hwacha
who advised that he had had problems with the payment of his
statement of account, hence
had not filed the papers.”






The
issue which arises for determination is whether the above averments
constitute a reasonable explanation for the appellants’
failure to
note the appeal timeously.





In
addition, it is pertinent to note that it has been stated in a number
of cases that a person seeking condonation of the late
noting of an
appeal should give a reasonable explanation, not only for the delay
in noting the appeal, but also for the delay in
seeking condonation.
Thus, in Saloojee and Anor, NNO v Minister of Community
Development
1965 (2) SA 135 (A) at 138H STEYN  CJ said:







“What calls for some acceptable explanation is not only the delay
in noting an appeal and in lodging the record timeously, but
also the
delay in seeking condonation. As indicated, inter alia, in
Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A)
at p 449, and in Meintjies’ case supra
[Meintjies v H.D. Combrinck (Edms) Bpk 1961 (1) SA 262
(A)] at p 264, an appellant should, whenever he realises that he
has not complied with a Rule of Court, apply
for condonation without
delay.”






Applying
that test to the facts of the present case, there can be no doubt
that the decision of the Tribunal was correct.





As
already stated, some of the appellants were dismissed on 31 August
1998, whilst the others were dismissed in the middle
of September
1998. Thereafter, instead of noting an appeal to the Tribunal in
accordance with the provisions of the then Labour
Relations Act
[Chapter 28:01] (“the Act”) (now the Labour Act
[Chapter 28:01]), they filed a court application in the
High Court on 10 December 1998, i.e. about three months after
they had been dismissed.
They gave no explanation whatsoever for
failing, during that period, to note an appeal to the Tribunal or to
seek condonation of
the late noting of the appeal.





The
appellants averred that after the dismissal of their High Court
application on 9 February 2000 they instructed their legal
practitioner to file an application for condonation, and signed
affidavits in support of that application. However, the affidavits
referred to were signed before a Commissioner of Oaths in May and
June 2000, and not in February 2000 immediately after the dismissal
of the High Court application. Once again, the appellants gave no
explanation whatsoever for the delay of about three months in
finalising the affidavits.





The
appellants further averred that after instructing their legal
practitioner to file an application for condonation, and signing
affidavits in support of that application, they believed that the
application had been filed with the Tribunal. They added that
it
was only on 21 May 2001, when one of them checked with the
Tribunal, that they discovered that no application for condonation
had been filed by their legal practitioner. When they approached
their lawyer, he said that no application had been filed because
his
fees had not been paid.





Before
considering whether the appellants’ averments constitute a
reasonable explanation for the delay in seeking condonation,
I would
like to set out what one of the appellants said in his affidavit.
When referring to what happened after the appellants
had instructed
their legal practitioner to file the application for condonation, he
said:







“Contended (Content?) that we had signed the necessary papers we
waited in vain for our legal counsel to advise us of the date
when
hearing of the application had been scheduled for. Numerous follow
ups to his offices and offices of the Commercial Workers
Union
yielded no favourable response. Fed up, we decided to check with
the Tribunal what was causing the delay, and to our horror
we
discovered that the lawyers had not filed anything at the Tribunal.”






It is
pertinent to note that the appellants did not allege that their legal
practitioner had been paid. In my view, he had not
been paid, and
that is why he did not file the application. If he had been paid,
the appellants would have said so and would have
filed an affidavit
from him explaining why he did not file the application in accordance
with their instructions.





Furthermore,
if it is true that between May 2000 and May 2001 the appellants made
“numerous follow ups to his offices”, the
legal practitioner
would have told them that he would not file the application before
his fees were paid. He could hardly be blamed
for adopting such a
stance.





Having
discovered, on 21 May 2001, that no application for condonation
had been filed by their legal practitioner, the appellants
did not
act without delay. Instead of filing the application urgently, they
waited until 5 July 2001. Once again, they gave
no explanation
for the delay of about forty-four days.





However,
even if it were accepted that the failure to note the appeal to the
Tribunal timeously and the delay in seeking condonation
of the late
noting of the appeal were due to the fault of their legal
practitioner, that would not assist the appellants. As I
stated in
Maswaure v Nyamunda 2001 (1) ZLR 405 (S) at 409 E-G:







“Even if the delay in applying for condonation were due to the
fault or negligence of the appellant’s legal practitioners, the
appellant would not escape the consequences of their lack of
diligence. As STEYN  CJ said in the Saloojee case
supra at 141 B-E:






‘I should point out, however, that it has not at any time been held
that condonation will not in any circumstances be withheld
if the
blame lies with the attorney. 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.’”






In the
circumstances, I am satisfied that the appellants did not give any
reasonable explanation for failing to note the appeal
to the Tribunal
timeously, and for the long delay in seeking condonation of the late
noting of the appeal.





In any
event, it must be borne in mind that in determining the application
the Tribunal exercised a judicial discretion. Unless
it is shown
that the Tribunal made an error in exercising that discretion, this
Court would not interfere with the Tribunal’s decision.
See
Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S) at 62G-63A.
In my view, no such error has been established.





In the
circumstances, I do not consider it necessary to deal with the
prospects of success of the appeal on the merits. As MULLER  JA
said in P.E. Bosman Transport Works Committee and Ors v Piet
Bosman Transport (Pty) Ltd
1980 (4) SA 794 (A) at 799 D-E:







“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 my
view, those comments apply to the present case with equal force.






Finally, I wish to comment very briefly on the case of First
Mutual Life Assurance v Jackson Muzivi
(not yet reported)
SC-62-2003, which was referred to by counsel for the appellants.
Although it appears that Jackson Muzivi
had participated in the
collective job action in which the appellants in the present case had
participated, it is clear from the
judgment in Muzivi’s case
supra that that case had nothing to do with condonation of the
late noting of the appeal to the Tribunal. It is, therefore, of no
assistance
to the appellants.






As there was no appearance for the Society, I shall not make any
order with regard to the costs of the appeal.






In the
circumstances, the appeal is devoid of merit and is, therefore,
dismissed.





ZIYAMBI
JA: I agree.





MALABA
JA: I agree.


Mbidzo,
Muchadehama & Makoni
, appellants' legal practitioners


Atherstone
& Cook
, respondent's legal practitioners