Court name
Supreme Court of Zimbabwe
Case number
SC 1 of 2006
Civil Application 337 of 2005

Tel One (Pvt) Ltd. v Communication and Allied Services Workers' Union of Zimbabwe (37/05) (SC 1 of 2006, Civil Application 337 of 2005) [2006] ZWSC 1 (08 February 2006);

Law report citations
Media neutral citation
[2006] ZWSC 1



7


SC
1/06















DISTRIBUTABLE
(1)





Judgment
No. SC 1/06


Civil
Application No. 337/05








TEL ONE
(PRIVATE) LIMITED v COMMUNICATION AND ALLIED SERVICES
WORKERS’ UNION OF ZIMBABWE








SUPREME
COURT OF ZIMBABWE


HARARE,
FEBRUARY 7 & 9, 2006








A
K Maguchu
,
for the applicant





T
Biti
,
for the respondent









Before: GWAUNZA JA, In
Chambers, in terms of Rule 34(5) of the Supreme Court Rules.







This is an
application for the reinstatement of an appeal following the
applicant’s failure to file, with the Registrar of the High
Court,
a letter of undertaking for the payment of the cost of the
preparation of the appeal record. The application is opposed
by the
respondent.







The applicant
concedes it did not submit the written undertaking to the Registrar
of the High Court. It is, however, submitted on
behalf of the
applicant that this default was not an indication that the applicant
did not wish to pursue the appeal. To the contrary,
it is
contended, the applicant's counsel had timeously filed the Notice and
Grounds of appeal and had, immediately and with the applicant’s
cooperation, seen to it that the record of the appeal was prepared at
the applicant’s cost.







The
applicant submits and has not been challenged by the respondent, that
preparation of the record had duly been completed, and that
copies
thereof had already been made and submitted to the Registrar. The
Registrar’s letter notifying of the lapsing of the appeal
had, it
is submitted, been received while this process was under way. It is
argued for the applicant that in view of this development,
the
requirement of the letter of undertaking had in effect become a
formality. This however, the applicant asserts, was not to say
the
requirement was to be ignored. The point was stressed that, to the
extent that Rule 34 was intended to expedite the process
of an
appeal, what the applicant had done was in fact to ensure that this
was so. The applicant’s action, it is submitted, had
been
prompted by delays due to lack of the relevant stationery and
equipment, currently being experienced at the office of the Registrar
in the preparation of appeal records.







In opposing
the application, the respondent argues that Rule 34 was mandatory in
its terms and should have been complied with regardless
of the fact
that the applicant had taken upon itself the task of preparing the
record. It is argued further for the respondent
that in addition to
not sending the written undertaking to the Registrar, the applicant
had taken too long, i.e. three months, to
prepare the record in
question. It was noted that the preparation in question simply
involved the photocopying of the various documents
that had
constituted the application in the court
a
quo.







The respondent
argued further that the failure of the applicant’s legal
practitioner to submit the written undertaking in question
should
appropriately be visited on the client, i.e. the applicant. For
this the respondent relied on the decision of this Court
in the case
of
Apostolic
Faith Mission & Two Ors v Titus Innocent Murefu

SC 28/03.







Essentially, in an application of
this nature, the applicant must satisfy the court firstly, that he
has a reasonable explanation
for the delay in question and secondly
that his prospects of success on appeal are good.







I am satisfied, and I find, that
the explanation tendered by the applicant for not submitting the
letter of undertaking on the payment
of the cost of preparing the
record, is reasonable. It can be said that by taking upon itself
the task of preparing the record,
and not leaving it to the
Registrar’s Office, with all its constraints in this respect, the
applicant had literally rendered Rule
34 irrelevant in the processing
of its appeal.







This however, should not be taken
to mean that applicants should, at will, enjoy the licence of
usurping the Registrar’s responsibilities
and then proceed to
disregard the rules with impunity. The rule is still in existence
and can only cease to operate if repealed
according to laid down
procedures.







Once it had been decided that the
applicant would take it upon itself to prepare the record, the
applicant’s legal practitioner,
being aware, as he must have been,
of the provisions of Rule 34, should have informed the Registrar
that, rather than pay the cost
of preparing the record, the applicant
was itself and at its expense, going to prepare the record in
question.







There is in my view no reason why
the applicant’s legal practitioner, preoccupied though he might
have been with preparing the record,
could not have paused long
enough to submit a note to that effect to the Registrar. That said,
it cannot be denied that the applicant’s
action in preparing the
appeal record did have the effect of facilitating the speedy
processing of the appeal in question. Even
though the applicant
defied a mandatory provision of the rules of this Court, I find that
the effect of this default is greatly mitigated
by the fact that its
action fulfilled and promoted the basic purpose of the rule in
question.







I am persuaded
by the applicant’s contention that the circumstances of this case
are distinguishable from those in
Apostolic
Faith Mission in Zimbabwe & 2 Ors v Titus Innocent Murefu
,
cited above. In the latter case the legal practitioner concerned
did nothing to expedite the appeal, beyond filing the notice
and
grounds of appeal. ZIYAMBI JA, who heard the matter, commended
correctly of the legal practitioner’s conduct in not submitting
the
undertaking in terms of Rule 34:






“Procrastination
is different from inadvertence.


It
involves putting off what one knows one has to do. The legal
practitioner was at all times aware of his responsibility in terms
of
the rules but kept on postponing it.”









In casu,
the applicant’s legal practitioner was not idle. He took what he
saw as the necessary steps to ensure that the record of the
appeal
was prepared without delay and submitted to the court. He did not
postpone complying with the rule, in the sense meant by
the learned
judge in the case cited.





In
any case my determination that the default in question has been
greatly mitigated by the effect of what the applicant’s legal
practitioner set out to do, and did, leaves little or no “sin” to
be visited on the applicant.





Nor
am I persuaded that there was an unreasonable delay in preparing the
record, as alleged by the respondent. While the task
could have
been completed sooner than it was, it certainly did not take as long
as the three months alleged by the respondent.
This application, is
however, concerned about the applicant’s default in submitting the
written undertaking, not in preparing the
record of the appeal.





All
in all, I am satisfied that the explanation given by the applicant
for the delay in question, is reasonable.





I
will turn now to the applicant’s prospects of success on appeal.






The
applicant has given eight grounds of appeal against the decision of
the court

a quo
.
It takes issue with the finding of the court
a
quo
that
the respondent had
locus
standi

and sufficient interest in the dispute between Tel One and its
individual employees, to interpose itself as a party to the
proceedings.
The applicant also charges that the court
a
quo

erred in the exercise of its discretion in deciding to entertain a
labour dispute when more effective domestic remedies were available
under the Labour Act. Lastly the applicant challenges the finding
of the court
a
quo
,
without evidence on the issue, that all employees had taken part in
the collective job action. It is the applicant’s assertion
that
there is undisputed evidence that not all employees went on
collective job action.





The
respondent, in opposing this application, filed no papers in support
of such opposition. In his argument before me, counsel
for the
respondent expressed no serious challenge to the applicant’s
detailed grounds of appeal. No argument was tendered in
respect of
the charge concerning the exhaustion of domestic remedies, a charge
that, if proved, may lead to the applicant succeeding
in its appeal.
Nor was there any argument directed at the applicant’s assertion
that not all employees had gone on the collective
job action
concerned. A finding that the applicant is correct in this
assertion may result in a different ruling on appeal. In
the light
of this lack of any challenge to the applicant’s grounds of appeal,
I am unable to make a definitive finding that the
applicant has no
prospects of success on appeal. The contrary is, in effect,
indicated.





The
applicant is therefore entitled to the order sought.





It
is in the premises ordered as follows:






1. The appeal in SC 337/05 be and
is hereby reinstated.



2. There shall be no order as to
costs.












Dube,
Manikai & Hwacha
,
applicants legal practitioners


Honey
& Blanckenberg,

respondent's legal practitioners