Court name
Supreme Court of Zimbabwe
Case number
SC 85 of 2005
Civil Application 151 of 2003

Kutiwa v Zimpost (51/03) (SC 85 of 2005, Civil Application 151 of 2003) [2006] ZWSC 85 (16 March 2006);

Law report citations
Media neutral citation
[2006] ZWSC 85



















Judgment
No. SC 85/05


Civil
Application No. 151/03








STEPHEN
KUTIWA v ZIMPOST








SUPREME
COURT OF ZIMBABWE


HARARE,
MARCH 17, 2006








F
M Katsande
, for the
applicant





D
A Machingura
, for the
respondent









Before: ZIYAMBI JA,
In Chambers, in terms of rule 5 of the Court Rules.





This
is an application for an extension of time within which to appeal
against a judgment of the Labour Relations Tribunal (now
the Labour
Court) (hereinafter referred to as ‘the Tribunal’) handed down on
9 December 2002.





The
applicant, who was employed by the respondent as a Superintendent,
was charged with misconduct the allegation being that the
applicant,
whose job included the conduct of spot checks, had falsified books of
account at Mandava Sub Post Office (‘the sub post
office’) by
placing ticks on the balance book indicating that he had actually
counted the cash and stocks when in fact he had not
done so. A
subsequent audit revealed a shortfall of $13 000 after the applicant
had been to the sub post office to check on two
occasions. The sub
post office was closed as a result.





The
applicant admitted at the disciplinary hearing that, subsequent to
the closure of the sub post office on 17 September 1998,
he ticked
the entries in the balance books for 10 September 1998 and placed his
signature thereon falsely indicating that he had
actually counted the
cash and stocks.





The
admission was repeated before the Tribunal where he was legally
represented although, in that court, his legal practitioner
argued
that he ought to have been charged with a lesser offence. This
argument was, in my view, correctly dismissed by the Tribunal.





In
terms of rule 5 of the Supreme Court (Miscellaneous Appeals And
References) Rules 1975 (‘the Rules’), a notice of appeal “shall
be delivered and filed ….within 15 days of the decision appealed
against being given.”






In or about May
2003, the applicant, having failed to note an appeal timeously, made
an ill-advised application to the High Court
for condonation of the
late noting of an appeal and an application for extension of time
within which to appeal to this Court.
It appears,
ex
facie
the order of the
High Court, that the application was granted by SMITH J on 14 May
2003. Thereafter, on 29 May 2003, the applicant
purported to file a
notice of appeal in this Court. The said notice was defective in
that it did not contain a prayer as required
by Rule 7 of the Rules.
Further, since appeals to this Court from the Labour Court can only
be on a question of law (by virtue
of s 92D of the Labour Act
[
Chapter 28:01]),
the notice of appeal was null and void, no question of law having
been raised therein.







The Registrar having
set the matter down for hearing, the applicant appeared by counsel to
argue his case in this Court on 10 January
2005 on which date the
matter was struck off the roll, the Court being of the view that the
appeal was a nullity. Thereafter, the
applicant’s legal
practitioners waited another two months before filing the present
application on 10 March 2005.






It
is trite that in an application of this nature, the factors by which
the court will be guided are as follows:







  • That the delay was
    not inordinate, having regard to the circumstances of the case;





  • That there is a
    reasonable explanation for the delay;





  • The prospects of
    the appeal succeeding should the application be granted are good;
    and





  • The possible
    prejudice to the other party should the application be granted.
    See
    Director of Civil
    Aviation v Hall

    1990(2) ZLR 354 (S) at 357E-G. See also
    Herbstein
    & Van Winsen The Civil Practice of

    the Supreme Court of
    South Africa
    4th ed
    at p898.







I
turn now to consider the application in the light of these factors
bearing in mind that each case must be decided on its own particular
facts.






The length of the
delay and the explanation therefor.






The
judgment was delivered some two and a half years ago. On the face
of it, therefore, the delay is inordinate.



The applicant blames
the delay on the lack of financial resources to employ a legal
representative. However, in November 2003, he
was assigned his
present legal practitioners to act on his behalf
in
forma pauperis.
The applicant has not explained his inaction for the 17 months
preceding the filing of this application. His legal practitioners
were, on their own admission, aware that the order granted by the
High Court was a nullity. Yet they made no application to this
Court for an extension of time within which to appeal but were
content to appear before this Court to argue the applicant’s case
despite their knowledge that the appeal was a nullity. When the
inevitable happened and the appeal was struck off the roll, one
would
have expected an application for condonation of the late noting of
the appeal and an extension of time within which to appeal
to be
filed immediately. Instead, the legal practitioners waited for two
months before filing this application and no explanation
has been
given for the delay.







In the words of
GUBBAY JA, as he then was, in
Nguruve
v
Secretary Of The
Commission Of Inquiry

1988 (1) ZLR 244 (SC) at p 248:






“… to
condone such delays would be to adopt too charitable a view. A
legal practitioner is expected to be diligent. He is expected
to
know, observe and follow the procedures laid down by the Rules of the
Court. He must use his best endeavours to get it right,
and if he
gets it wrong at least be prepared to offer some reasonably cogent
explanation. It is totally insufficient for him to
shroud his
errors in silence.”









And, in Director
of Civil Aviation v Hall

supra,
the following passage from
P
E Bosman Transport Works

Committee & Ors v
Piet Bosman Transport

(Pty) Ltd 1980 (4) SA 794 (A) at 799 D-E was quoted with approval:







“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 explanation
for some
periods of delay and, indeed, in respect of other periods of delay,
no explanation at all, the application should….not
be granted
whatever the prospects of success may be.”







See also At
The Ready Wholesalers
(Pvt) Ltd t/a
Power
Sales v
Innocent
Katsande & 5 Ors

SC 7/03;
Jaison
Kokerai Machaya v

Lameck Nkiwane Muyambi
SC 4/05; and
Kodzwa v
Secretary for Health
&
Anor
1999 (1) ZLR 313
at 315 F-H.






In
the light of the above, the application has failed the first and
second hurdles and could be dismissed at this stage. I nevertheless
proceed to examine the prospects of success.






The prospects of
success







Appeals to this
Court from the Labour Court are on a question of law only. Mr
Katsande,
in an ‘amended notice of appeal’ attached to the application,
gave the following as grounds of appeal and I deal with them in
turn.







1. The learned Judge
erred in his analysis of the applicant’s
mens
rea
.







A perusal of the
judgment reveals that the Tribunal proceeded on the basis of an
admission by the applicant, who was legally represented,
that he had
falsified documents. This is a dismissible offence in terms of the
applicable Code of Conduct. Once the admission
was made, the
decision to dismiss the applicant could not be faulted. There was,
consequently, no ‘analysis of
mens
rea’
as Mr
Katsande
put it.







2. The second ground
of appeal raised by Mr
Katsande
was that the decision of the Tribunal was irrational because the
accounting system of the respondent was flawed.







The question as to
whether the accounting system was flawed was not canvassed in the
court below and is being raised for the first
time on appeal, a
course which is not open to the applicant unless the criteria set out
in the following passage taken from the judgment
of KORSAH JA in
Muchakata v Netherburn
Mine
1996 (1) ZLR 153 (S) at 157A, have been shown to be satisfied.







“Provided
it is not one which is required by a definitive law to be specially
pleaded, a point of law, which goes to the root of the
matter, may be
raised at any time, even for the first time on appeal, if its
consideration involves no unfairness to the party against
whom it was
directed:
Morobane
v Bateman
1918 AD 460;
Paddock Motors (Pty) Ltd v Igesund
1976
(
3) SA 16 (A) at
23D-G.”







There must, in the
first place, be a point of law which goes to the root of the matter
and, secondly, the consideration of it must
not involve unfairness to
the other party. Since the issue sought to be raised on appeal is
not on a point of law, the applicant
has failed to satisfy the first
criterion and this ground of appeal cannot be properly be relied
upon. Besides, nothing in the
decision of the Tribunal strikes me
as being irrational. If anything, the decision was based on sound
logical reasoning.







3. The final ground
of appeal was that the hearing committee was biased.







This ground of
appeal, like the second, was raised for the first time in this Court
and the question sought to be raised is one of
fact. It was never
an issue before the Labour Court before whom the applicant was
legally represented. Like the second ground
of appeal, and for the
same reasons, it cannot properly be relied upon by the applicant on
appeal.







Accordingly, no
valid grounds have been raised in the ‘amended notice of appeal’
which persuade me that the appeal is properly
before this Court in
terms of s 92D of the Labour Act; nor has the applicant made any
attempt in his affidavit to show that the judgment
of the Tribunal
was wrong and that the appeal has reasonable, or any, prospects of
success. On the contrary, the applicant acknowledged
his error and
apologised for it. The punishment imposed on him was that
stipulated in the Code of Conduct. The judgment of the
Tribunal
therefore cannot be faulted.







The possible
prejudice to the other party







There must be
finality to legal proceedings. See
Ndebele
v Ncube
1992 (1) ZLR
288 (S). The judgment in this matter was handed down almost three
years before this application was made and the
respondent would have
acted upon it, no notice of appeal having been lodged within the time
prescribed by the Rules of this Court.
It goes without saying that
reopening the matter at this stage would be prejudicial to the
respondent. It would introduce uncertainty
into the affairs of the
respondent which would have conducted its business on the basis that
there was no appeal and that the matter
had reached finality.







In view of the
above, I conclude that no basis has been established for the grant of
this application and it is hereby dismissed.






Since the applicant
is being represented
informa
pauperis
, I make no
order as to costs.














F M Katsande &
Partners
, applicant’s
legal practitioners