Court name
Supreme Court of Zimbabwe
Case number
SC 26 of 2008
Civil Application 161 of 2008

St. John's Educational Trust v Gardner (161/08) (SC 26 of 2008, Civil Application 161 of 2008) [2008] ZWSC 26 (08 July 2008);

Law report citations
Media neutral citation
[2008] ZWSC 26

Judgment No. SC 26/08

Civil Application No 161/08


ST JOHNS EDUCATIONAL TRUST
v DAVID EDWARD GARDNER


SUPREME COURT OF
ZIMBABWE
HARARE, SEPTEMBER 19, & OCTOBER 6, 2008


D
Mundiya
, for the applicant

J B Wood , for the
respondent


Before: ZIYAMBI JA: In Chambers in terms of r 5 of the
Rules of the Supreme Court.

This is an application for leave to appeal
against a decision of the Labour Court in terms of s 92(3) of the Labour Act
[Cap 28:01] which provides as follows:

“92F Appeals against decisions of Labour Court.

(1) An appeal on a question of law only shall lie to the Supreme Court from
any            decision
of the
Labour Court.

(2) Any party wishing to appeal from any decision of the Labour Court on a
           question
of law in
terms of subs (1) shall seek from the President who made the
      decision leave to
appeal that decision.



(3) If the President refuses leave to appeal in terms of subs (2), the
party may seek      leave from
the Judge of the
Supreme Court to appeal.


Leave to appeal was refused by the Labour Court on 4 June 2008
and this application was filed on 30 July 2008.

The respondent contended
that the application was out of time and no application for condonation for the
delay in filing the application
having been made, the application could not be
entertained by this Court.

The applicant in reply pointed out that no
time limit is set by the Labour Act for making such applications. He referred to
Fiona Chikurunhe & Two Hundred and Thirty Four Ors v Zimbabwe
Financial Holdings
SC 9/08. S92F(3) in its wording provides not for an
appeal against the refusal of the President of the Labour Court to grant leave
to appeal but for an application to this Court for leave to appeal. No time
limit for this application has been set although the
Labour Court Rules require
the application to that court in terms of subs(2) for leave to appeal be made
within 30 days of the judgment
sought to be appealed against.

It was
submitted on behalf of the respondent that 30 days should be the outer limit for
an application to this Court since the Labour
Court Rules had set that period as
that within which an application should be made to it. To hold otherwise would
mean that a litigant
could make such an application after 2 years or any number
of years and be within his rights. Accordingly it ought to be held that
applications of this sort should be made within a reasonable time and the time
limit set by the Labour Court rules is reasonable.

Had the matter before
me been an appeal from the refusal by the President of the Labour Court to grant
leave to appeal I would have
been inclined to apply rule 5 of the Supreme Court
(Miscellaneous Appeals and References) Rules 1975 which requires appeals to this
Court to be noted within 15 days of the date of the judgment appealed against.
But it is quite clear from the wording of the legislation
under mention that an
application, not an appeal, is to be made to this Court. It may be that an
application of this nature could
be refused if the delay in filing the
application is grossly unreasonable but that is not the case in casu and
I would be hesitant to dismiss the application on that ground.

It was
further submitted by the respondent that in any event the application should be
dismissed on the grounds that there are no
prospects of success on
appeal.

The facts, as recounted in the judgment of the Labour Court, are
that the respondent was employed as a Sports and Physical Education
teacher at
St Johns College. On 14 September 2006, he was on a sports tour in the United
Kingdom when he received a telephone call
advising him that he had been
suspended from employment with immediate effect, with pay and benefits, on
allegations of sexual harassment
of some of the boys at the College.


Subsequently, the respondent was served on “28 and 29 September
2006” (sic) with a notice to attend a disciplinary hearing on 4
September 2006. The notice contained a list of the charges he would be facing
and the witnesses’ statements were served on the respondent on 3 October
2006.

On 4 September 2006, the respondent presented himself at the
hearing with his legal representative who then requested a postponement
for a
week in order to prepare his defence. The application was opposed by the
applicant on the grounds that the matter was urgent
as some of the boys would be
writing exams within 3 weeks and it was important that the matter be speedily
dealt with. It was submitted
that in any event the respondent had had enough
time to prepare his defence since his legal practitioner had been instructed to
represent
him 10 days prior to the hearing and the charges had been set out in
the notice of hearing. The Disciplinary Committee having listened
to argument
declined to postpone the matter for a week it being of the opinion that it was
in the interests both of the students
concerned and the respondent that the
matter be determined without delay. The legal practitioner then walked out of
the hearing
insisting that he needed a week to prepare the defence. The
respondent thereupon indicated to the hearing that he did not wish to
proceed
without representation and the Disciplinary Committee decided to postpone the
matter for 2 days to enable him to obtain legal
representation. At the resumed
hearing the respondent appeared and handed a letter to the Board of Governors.
The Board considered
the proposals contained in the letter unacceptable and so
advised the respondent. It was also advised to the respondent that it
was
intended to proceed with the disciplinary hearing and that if he were to leave,
the hearing would proceed in his absence. The
respondent then left and the
hearing proceeded. He was found guilty of misconduct and was
dismissed.

The respondent took the matter to the Labour Court on review
alleging that his suspension was a nullity by virtue of its being verbal
and not
written as required by s 6(1) of the Labour (National Employment Code of
Conduct) Regulations, 2006 and, further, that
the failure of the Disciplinary
Committee to grant a postponement to enable him to be represented by a legal
representative of his
choice was a gross irregularity. The Labour Court found in
the respondent’s favour and refused an application made by the applicant
for leave to appeal to the Supreme Court.


It seems to me that it
is in the very least arguable that there are reasonable prospects that this
Court sitting as an appeal Court
could arrive at a conclusion different from
that of the court a quo. I would, therefore, allow the
application.

Accordingly it is ordered as follows:



The application for leave to appeal is hereby granted..


The
applicant is to file its notice of appeal to this Court within 5 days of the
date of this order.



The costs of the application shall be costs in the
cause.




Gill, Godlonton & Gerrans ,
applicants’ legal practitioners
Byron Venturas & Partners ,
respondent’s legal practitioners