Court name
Supreme Court of Zimbabwe
Case number
SC 137 of 2004
Civil Application 98 of 2002
15 of 2003

Founders Building Society v Dambwara (98/02, 15/03) (SC 137 of 2004, Civil Application 98 of 2002, 15 of 2003) [2005] ZWSC 137 (09 May 2005);

Law report citations
Media neutral citation
[2005] ZWSC 137













DISTRIBUTABLE
(122)


Judgment
No. SC. 137/04


Civil
Application Nos. 98/02 & 15/03








FOUNDERS
BUILDING SOCIETY v PATRICK DAMBWARA








SUPREME
COURT OF ZIMBABWE


HARARE,
SEPTEMBER 15, 2004 & MAY 10, 2005








H
Zhou
, for the applicant





A
M Gijima
, for the respondent





Before:
MALABA JA, In Chambers in terms of rule 4 of the Supreme Court
of Zimbabwe Rules






This
application was presented and argued as an application for an order
for reinstatement of the appeals in cases SC 93/02
and SC 15/03,
which had been regarded as abandoned and deemed to have been
dismissed in terms of subrule (1) of rule 44
of the Rules
of the Supreme Court of Zimbabwe (“the Rules”). It became clear
to me, however, that the notice of appeal purportedly
filed in each
case was fatally defective. I have proceeded on the basis that the
application in each case is for an extension of
time in which to note
an appeal.





The
respondent (“Dambwara”) was employed by the applicant
(“Founders”) in the mortgage department at its branch in Harare.

He was the secretary of the Workers Committee. On 5 November
1998 the Financial Gazette newspaper published an article in
which it alleged that “50% (of) Founders’ staff face
retrenchment”. The writer of the article
quoted the chairman of
the Workers Committee as the source of its information. Founders
considered the information to be false
and damaging to its
reputation. The human resources manager contacted the chairman of
the Workers Committee about the publication
of the article. The
chairman of the Workers Committee referred him to the secretary.





On
12 November 1998 the human resources manager wrote to Dambwara
in his capacity as the secretary of the Workers Committee.
Dambwara
was asked whether the Workers Committee had decided to release
information on the retrenchment of workers to the press
and if so
where they had got that information from. It was clear from the
letter that Dambwara was expected to provide a response
to the
questions asked by the human resources manager and explain the rôle,
if any, played by the Workers Committee in the publication
of the
article in the Financial Gazette. On 13 November 1998
Dambwara wrote to the human resources manager acknowledging receipt
of the letter and advising that he
was still to convene a meeting of
all members of the Workers Committee to respond to the letter the
following week.





On
the day Dambwara wrote acknowledging receipt of the letter written by
the human resources manager, some of the members of the
Workers
Committee wrote to him disassociating themselves from the publication
of the article on the retrenchment of workers by Founders.
They
indicated that the publication of the article was authorised by the
chairman without their knowledge and consent.






Despite receipt by him of the
letter from the other members of the Workers Committee disassociating
themselves from the decision to
publish the information on the
alleged retrenchment of half of the workforce by Founders, Dambwara
did not respond to the letter
from the human resources manager.





On
18 November 1998 the human resources manager wrote Dambwara
another letter, reminding him of the fact that he was under a
duty to
respond to the letter of 12 November 1998. It was made clear
to him that the letter contained a lawful order and that
failure to
respond to the questions raised therein by 12 noon of
19 November 1998 would constitute deliberate disobedience
to a
lawful order given by a person in authority.





Instead
of providing a personal response to the questions raised in the
letter of 12 November 1998 as required, Dambwara placed
the
matter in the hands of the Commercial Workers Union. On the same
day the assistant general secretary of the Commercial Workers
Union
advised the human resources manager in writing that they had been
instructed by Dambwara to deal with the question of the involvement
of the Workers Committee in the publication of the article in the
Financial Gazette. He asked that all questions on the matter
be directed to the Commercial Workers Union.





On
7 December 1998 Dambwara appeared before an internal
Disciplinary Committee charged with wilful disobedience to a lawful
order
given by a person in authority in contravention of para 4.4.3
of Founders’ Code of Conduct. The allegation was that he had
wilfully disobeyed the order lawfully given by the human resources
manager to respond to the questions raised in the letter of
12 November
1998 on the involvement or otherwise by the Workers
Committee in the publication by the Financial Gazette of the
article on the retrenchment of workers. Dambwara was found guilty
of the misconduct charged against him and given a final
written
warning. His defence to the charge had been that the questions
raised in the letter on 12 November 1998 had been responded
to
when he referred the matter to the Commercial Workers Union.





Although
Dambwara’s appeal against conviction to the managing director was
unsuccessful, it received a favourable hearing before
the Labour
Relations Tribunal (“the Tribunal”), which held that the order
given by the human resources manager to Dambwara to
respond to the
questions raised in the letter of 12 November 1998 was unlawful.
The Tribunal was of the opinion that Founders,
as an employer, had
no right to give Dambwara orders on matters relating to the execution
of his duties as the secretary of the Workers
Committee since he was
answerable to the workers only when performing those duties. The
appeal was accordingly allowed.





Judgment
in case no. SC 93/02 was given by the Tribunal on 18 February
2002. On 20 March 2002 Founders purported
to file a notice of
appeal against the judgment of the Tribunal. The time within which
the appeal ought to have been instituted
had expired. The document
did not state the date when the judgment appealed against had been
given.





On
29 December 1998 Dambwara had appeared before the Disciplinary
Hearing Committee charged with two offences under Founders’
Code of
Conduct, that is to say, “deliberately giving untrue, erroneous,
misleading information or testimony whether verbally or
in writing”.
The first count alleged that he had given false information to the
Financial Gazette, which was published on 5 November
1998. The second count alleged that when confronted by the human
resources manager about
the publication of the false information in
the Financial Gazette, Dambwara had deliberately misled the
human resources manager and falsely stated that he had acted on
instructions from members of
the Workers Committee in giving the
information to the press. It was alleged that members of the
Workers Committee disassociated
themselves from Dambwara’s
statement.





Dambwara
was found not guilty on the first count. He was convicted of the
second count and dismissed from employment. He appealed
unsuccessfully to the managing director. On 4 February 2002
his appeal to the Tribunal was heard. There was no appearance
for
Founders. The Tribunal heard brief submissions from Dambwara, at
the end of which it allowed the appeal and set aside his dismissal.





An
application for rescission of judgment was made to the Tribunal on
31 December 2002 without success. Founders then purported
to
file a notice of appeal in case no. SC 15/03 against the
judgment of the Tribunal on 21 January 2003. The document
made
no mention of the date when the judgment appealed against was given.





It
is clear that the notice of appeal filed in each case was fatally
defective and a nullity. The document filed in each case was
not a
notice of appeal, in that it did not state the date on which the
judgment appealed against had been given. In case no. SC 93/02
the notice of appeal was filed out of time. Rule 7 of the
Supreme Court (Miscellaneous Appeals and Offences) Rules provides
that a notice of appeal against a judgment of the Labour Court or
tribunal other than the High Court shall state the “date on which
the decision was given”. The rule is couched in peremptory terms.





In
Matanhire v BP Shell SC-113-04 it was held that a notice of
appeal that fails to state the date when the decision appealed
against was given is fatally
defective and a nullity. There was
therefore no valid appeal instituted in each case. I am, however,
prepared to accept the fact
that, as the failure to comply with the
mandatory provisions of rule 7 of the Supreme Court
(Miscellaneous Appeals and Offences)
Rules preceded the decision in
Matanhire's case supra, such failure was due to the
genuine belief on the part of Founders’ legal practitioners,
apparently shared by Dambwara’s legal
practitioners, that proper
notices of appeal had been filed. Both parties approached the
matter on the basis that an appeal had
been noted in each case and
later regarded as abandoned and deemed to have been dismissed for
failure by Founders to timeously file
heads of argument.





The
success of the application for an extension of time in which to note
an appeal in each case depends on whether there are good
prospects of
success.





My
view of the facts is that there are no good prospects of success on
appeal in case no. SC 15/03. Having found Dambwara not
guilty
of having given false information on the retrenchment of workers by
Founders to the Financial Gazette, there was no basis on which
the Disciplinary Hearing Committee could find him guilty of having
given false information to the human
resources manager to the effect
that in doing what he had in fact not done he had the approval of
members of the Workers Committee.





The
same cannot be said of the prospects of success in case no. SC 93/02.
There is no question that the letter of 12 November
1998
contained an order directed at Dambwara personally and as the
secretary of the Workers Committee to respond to the questions
raised
therein on the publication of the article on the retrenchment of
workers by Founders in the Financial Gazette. The Tribunal’s
reasoning that the order was not lawful because it required Dambwara
to respond on matters relating to the execution
of his duties as the
secretary of the Workers Committee for which he was accountable to
the workers only is, in my view, flawed.
The order was based on the
assumption of the fact that the Workers Committee, through Dambwara
as its secretary, had given the
false information on the retrenchment
of workers to the Financial Gazette with the intention of
injuring Founders’ reputation. Giving false information to a
third party with an intention to injure the
employer’s reputation
cannot be regarded as part of the duties of a secretary of a Workers
Committee.





The
application for an extension of time in which to note an appeal in
case no. SC 93/02 is granted with costs. The applicant
is to
file a notice of appeal within fifteen days of this order.









Honey
& Blanckenberg
, applicant's legal practitioners


Manase
& Manase
, respondent's legal practitioners