REPORTABLE (06)
ZESA HOLDINGS(PRIVATE) LIMITED
v
(1) TAKAWIRA MUNYANYI (2) SAIDI SANGULA
SUPREME COURT OF ZIMBABWE
HARARE: 15 SEPTEMBER 2023 & 19 JANUARY 2024
C. Mahara, for the applicant
A. Maguchu, for the first respondent
No appearance for the second respondent
IN CHAMBERS Judgment No 06/24
1
Chamber Application No. SC 465/23
CHATUKUTA JA: This is a chamber application for condonation of
non-compliance with the rules and extension of time within which to apply for leave to
appeal to the Supreme Court made in terms of r 64 as read with r 43 (3) and r 60 (2) of the
Supreme Court Rules, 2018 (“the Rules”).
BACKGROUND FACTS
The applicant is a registered company duly incorporated in terms of the laws of
Zimbabwe. The first respondent is a labour officer from the Ministry of Public Service,
Labour and Social Welfare, Department of Labour Relations. The second respondent was an
employee of the applicant.
The second respondent was accused of misconduct under the Labour (National
Employment Code of Conduct) Regulation, 2006 (Statutory 15 of 2006), (“the Code”). The
matter was brought before the Disciplinary Committee (“the Committee”) of the applicant for
a disciplinary hearing. For the Committee to comply with the Code, it must have completed
the hearing within 30 working days. It failed to do so. The second respondent thereafter
approached the first respondent for recourse. The latter issued a draft ruling and applied
before the court a quo for its confirmation. The application was granted on 20 January 2022
and the court a quo ordered the reinstatement of the second respondent to his original
position without loss of salary and benefits. The court a quo further ordered that if such
reinstatement was no longer possible, the applicant was to pay damages in lieu of such
reinstatement. By letter dated 30 March 2022, two months after the grant of the order, the
applicant requested for written reasons for the order. The reasons were availed on 6 May
2022. Judgment No 06/24
2
Chamber Application No. SC 465/23
On 31 May 2022, four months after confirmation of the draft ruling, the applicant
filed an application for leave to appeal in the Labour Court. The application was struck off
the roll for the reason that it was filed out of time and the applicant had not sought
condonation. In terms of r 43 of the Labour Court Rules, 2021, the applicant ought to have
applied for leave to appeal within 21 days from the date of the decision of the Labour Court.
The applicant thereafter filed an application for condonation for the late filing of an
application for leave to appeal with the court a quo on 24 October 2022. In addition to
condonation, it sought an extension of time within which to file its application for leave to
appeal.
PROCEEDINGS BEFORE THE COURT A QUO
The applicant made the following submissions: The delay in filing an application
for leave on time was occasioned by the bureaucratic nature of the applicant’s operations.
Authority had to be sought first from the Board of the applicant to give instructions to file the
application in view of the second respondent’s seniority. The applicant’s counsel was under
the belief that the dies induciae for the filing of the application would start running upon
being furnished with written reasons for the order issued by the court a quo. The intended
appeal had prospects of success. The court a quo had misdirected itself by ordering payment
of damages in lieu of reinstatement when the second respondent had not been dismissed. The
first respondent’s draft ruling did not contain an order for damages. The court a quo had
therefore erroneously altered the first respondent’s order. The second respondent had secured
alternative employment after the issuance of the first respondent’s draft ruling, thereby
terminating the contract of employment between the warring parties. The court a quo erred
by not taking into account that development. Judgment No 06/24
3
Chamber Application No. SC 465/23
The second respondent opposed the application. He argued that the delay in filing
the application was inordinate. He further argued that the explanation was unreasonable
because counsel for the applicant failed to state the legal basis upon which he believed that
the application could only be filed upon receipt of written reasons for the order. As regards,
prospects of success, it was submitted that the intended appeal was not meritorious.
The court a quo dismissed the application on 17 May 2023. It held that the delay
in filing the application was inordinate and that the applicant did not proffer a reasonable
explanation for the delay in filing an application for leave and for the delay in seeking
condonation. It further held that the applicant did not have prospects of success on appeal.
In the absence of a request by the applicant to adduce new evidence, the court could not take
into account evidence that arose after the decision of the first respondent. It further held that
the other proposed grounds of appeal did not raise points of law.
Aggrieved by the decision of the court a quo, the applicant approached this Court
in June 2023 under SC 300/23 seeking condonation and extension of time within which to
apply for leave and for leave to appeal. The application was made in terms of r 61, r 60 (2) of
the Rules. The matter was struck off the roll on 18 July 2023 for the reason that it was filed
under the wrong rule. The present application was filed on 10 August 2023.
PROCEEDINGS BEFORE THIS COURT
At the hearing, Mr Maguchu, for the second respondent, raised two preliminary
issues, firstly, that the application was improperly before the Court. He argued that the
applicant could only approach this court after having unsuccessfully sought leave to appeal in
Judgment No 06/24
the court a quo. It was submitted that the applicant did not seek leave in the court a quo and 4
Chamber Application No. SC 465/23
had therefore prematurely approached this Court. For this proposition, the second respondent
relied on Chomurema v Telone SC 86/14.
Secondly, Mr Maguchu submitted as follows: The application was defective for
the reason that it was made in terms of an inapplicable rule. Rule 43 of the Rules, in terms of
which the application was filed, provides for applications for condonation and extension of
time within which to appeal and does not relate to leave to appeal. The rule relates to matters
emanating from the High Court and not the Labour Court. The applicant used an incorrect
format instead of being guided by the peremptory provisions of r 72A of the Rules.
Per contra, Mr Mahara, for the applicant, submitted as follows: The application
was properly before this Court. The rules do not provide for applications for condonation for
late filing of an application for leave to appeal. Rule 64 of the Rules provides that r 43 of the
Rules shall apply mutatis mutandis where there is a casus omissus. There being a lacuna, r
43 was applicable. The applicant relied on this proposition on Zimbabwe Anti-Corruption
Commission v Mangwiro & Anor SC 11/22. Relying on the same case, it was submitted that
it was redundant for it to seek leave to appeal from the same court that had dismissed its
application for condonation. It was argued that the effect of the dismissal was to deny it
access to the Supreme Court. It was therefore competent to proceed as it has done.
On the merits, Mr Mahara submitted that the applicant had satisfied the
requirements for condonation. In support of this contention, he relied on the same arguments
advanced in the court a quo. He, however, made an additional submission that there was a
further delay as a result of the application in this Court under SC 300/23 seeking condonation
and extension of time within which to apply for leave and for leave to Judgment No was
06/24
appeal which 5
Chamber Application No. SC 465/23
struck off the roll.
Per contra, Mr Maguchu also persisted with the arguments as advanced in the
court a quo. He argued the requirements for condonation had not been met and that the
application ought not to succeed.
ISSUE FOR DETERMINATION
The issue for determination is whether or not the application is properly before
this Court.
APPLICATION OF THE LAW
In the court a quo, the applicant filed an application for condonation for the late
filing of an application for leave to appeal which was dismissed for the reason that the
applicant had failed to meet the requirements for such an application. Consequently, the
applicant approached this Court to seek condonation for the late filing of an application for
leave to appeal coupled with an application to seek leave to appeal to this Court in
accordance with r 64 as read with r 43 (3) and 60 (2) of the Rules.
A party aggrieved by the decision of the court a quo must apply for leave to
appeal from that court in terms of s 92F (2) of the Labour Act. Section 92F of the Labour
Act reads:
“92F. Appeals against decisions of Labour Court
(1) An appeal on a question of law only shall lie to the Supreme Court from
Judgment No any
06/24
decision of the Labour Court. 6
Chamber Application No. SC 465/23
(2) Any person wishing to appeal from any decision of the Labour Court on a
question of law in terms of subsection (1) shall seek from the President
who made the decision or, in his or her absence, from any other President
leave to appeal that decision.
(3) If the President refuses leave to appeal in terms of subsection (2), the party
may seek leave from the judge of the Supreme Court to appeal.” (own
emphasis)
The above section is clear and unambiguous. The use of the peremptory term
‘shall’ in subs (2) signifies that the provision must be strictly adhered to. The above
provision explicitly sets out that a party intending to appeal a decision of the Labour Court
shall seek the leave of that court. This is distinguishable from the wording of subs (3) which
uses the word ‘may’ and is therefore discretionary. Once a party has complied with the
mandatory dictates of subs (2) it is within its discretion to seek leave directly in the Supreme
Court. The distinction between the two subsections clearly exhibits the legislature’s intent on
how a party should proceed if it intends to challenge a decision of the Labour Court.
It is only when leave is denied by the Labour Court that a party thereafter “may”
seek from this Court leave to appeal in terms of r 60 (2) of the Rules. Rule 60 (2) provides
that:
“60 (2) An appeal from a decision of the Labour Court in terms of section 92F of the
Labour Act [Chapter 28:01] shall be delivered, with the registrar, within 15 days from
the grant of leave to appeal by the Labour Court or, when: such leave is refused,
within 15 days from the grant of leave by a judge:”
The jurisdiction of this Court to entertain an application for leave to appeal is
therefore premised on the court a quo having denied leave to appeal. GWAUNZA JA (as she
then was) remarked in Chomurema v Tel One (supra), at para 6, that:
Judgment No 06/24
“6. What is evident is that the Labour Court did not consider the merits
Chamber Application the 7
No. SCof465/23
application for leave to appeal to the Supreme Court. Indeed, it could not have
properly done so without first condoning the late filing of such an application. The
applicants were barred and at that point in time, out of court.”
Prior to the determination of the application by GWAUNZA JA, the applicants in
Chomurema v Tel One had brought another ill-fated application which was dismissed by
GARWE JA (as he then was) as reflected in para 10 of the judgment which reads:
“10. The application was dismissed in chambers by GARWE JA on the 14th of
December 2010, without considering the merits thereof and without giving
written reasons for the decision. This was on the basis that this Court could not
consider the application for leave to appeal to it before:-
(i) Condonation for the late filing of that application in the Labour Court had
been obtained, and,
(ii) The leave of the Labour Court had been properly sought and denied.”
(own emphasis)
The facts of that case were that the applicants had filed an application for leave to
appeal in the Labour Court out of time. They did not file an application for condonation but
merely alluded in the founding affidavit to the need for condonation. They did not
incorporate the request for condonation in the draft order. The Labour Court held that there
was no valid application for condonation before it. It however proceeded to determine and
dismiss the application for leave to appeal. The applicants then approached this Court for
leave to appeal. The application was dismissed. The principle that emanates from the
judgment in that case is that an application for leave to appeal must be filed and determined
in the Labour Court before approaching the Supreme Court.
It is common cause that the applicant did not file before the court a quo an
application for leave to appeal. It only filed an application for condonation. The application
Judgment No 06/24
was dismissed. The applicant justifies the procedure Chamberit then adopted before meSC
Application No. the 8
on465/23
following remarks by KUDYA AJA (as he then was) in ZACC v Mangwiro & Anor (supra)
at p 28:
“The effect of a dismissal of an application for condonation for leave to appeal is to
deny the applicant access to the Supreme Court. The court a quo dismissed the only
application that would have opened the applicant’s way to this Court. In the
circumstances, it became legally impossible for the applicant to seek leave from the
court a quo. The import of the dismissal was to refuse the applicant leave to appeal to
this Court. The refusal, by operation of law, therefore, activated s 93 (F) of the Labour
Act. In terms of r 60 (2) of the Supreme Court Rules, 2018, the applicant had, as at the
date of the refusal (23 February 2018), 15 days within which to seek leave to appeal
from a judge of this Court. Instead, for a period of three years, it went on a wild goose
chase, in which it mounted five useless applications, which clearly wasted valuable
judicial time.”
The applicant did not however relate to the remarks at p 7 where it is stated that:
“They correctly sought condonation for the late filing of the application for leave to
appeal. It is not clear to me why they did not co-join that application with the actual
application for leave to appeal”
KUDYA AJA judiciously drew attention to the fact that the proper procedure was
to file an application for condonation and also for leave to appeal before approaching the
Supreme Court, which procedure is consistent with the principle emanating from the
Chomurema v Tel One case. I lament, in casu, as KUDYA AJA did, why the applicant did
not file an application for leave to appeal and instead opted to seek to file its application after
the granting of condonation.
My brother further remarked that:
“It would be absurd to require the applicant to seek leave to appeal against the
dismissal and require the Supreme Court to determine whether condonation was
properly refused or not. Such a circuitous route to appeal the substantive judgment
could not have been in the contemplation of the Legislature, which amongst other
things, requires that Labour matters be completed inexpensively and timeously with
minimum regard to formalism.”
Judgment No 06/24
I do not agree, with respect, to KUDYAChamber
AJA thatApplication
once an application for 9
No. SC 465/23
condonation has been dismissed, a party has the right of audience before this Court in the
absence of an application in the Labour Court for leave to appeal and determination of that
application. Section 92F explicitly states that the right to have an audience with the Supreme
Court comes into effect the instant an application for leave to appeal is dismissed. The
dismissal of an application for condonation cannot trigger the application of s 92F (3). The
Supreme Court is a creature of statute. A judge of the Supreme Court derives his/her powers
to determine an application for leave to appeal from s 92 F (3) of the Labour Act. He/she can
only do so after the Labour Court has been seized with an application for leave and dismissed
it. A judge, in chambers, cannot depart from the dictates of the Labour Act. To do so would
amount to altering the Labour Act and arrogating to himself or herself legislative powers.
The effect of proceeding to determine the application before me, where
condonation was declined by the court a quo, is an interference with the judgment of the
court a quo declining condonation. The decision of the court a quo was an exercise of
discretion. A single judge, in Chambers, is being called upon to interfere with the exercise of
discretion of the court a quo. An interference with the exercise of discretion by a subordinate
court can only be in terms of a process properly before the Supreme Court challenging that
decision. There is no such process before this Court.
Consideration of the present application is tantamount to opening floodgates to
litigants to circumvent a statutory requirement. The reliance by the applicant on ZACC v
Mangwiro & Anor is evidence of such potential opening of floodgates. What is more
worrying, in casu, is the applicant is legally represented. It did not relate in its heads of
argument to the judgment in Chomurema v Tel One and attempt to distinguish it from the
Judgment No 06/24
judgment in ZACC v Mangwiro & Anor despite the former judgment being referred
Chamber Application the 10
to in465/23
No. SC
second respondent’s opposing affidavit.
In the case of FBC Bank Limited v Chiwanza SC 31/17, at p 3, the Court asserted
the importance of strictly adhering to the rules in the following remarks:
“It hardly needs mention that rules of court must be followed in order to ensure
proper and good administration of justice. In Sibanda v The State, the court quoted
the case of S v McNab 1986 (2) ZLR 280 (S) at 284E where DUMBUTSHENA CJ
noted the following: - “I have dealt at length on this point because it is my opinion
that laxity on the part of the court in dealing with non-observance of the rules will
encourage some legal practitioners to disregard the rules of court to the detriment of
the good administration of justice.”
In the present matter, it is not just a disregard of the rules of court. It is a
disregard of a provision of an Act of Parliament.
My brother KUDYA JA did not relate in his judgment to the decision in
Chomurema v Tel One (supra). It appears that the authority was not brought to his attention.
I opine that had it been brought to his attention, he may have arrived at a different decision. I
am persuaded by the reasoning in Chomurema v Tel One that the applicant’s application is
prematurely and consequently, improperly before this Court and ought to be struck off the
roll.
DISPOSITION
The preliminary issues raised by the second respondent, whether the application
is improperly before me for failure to seek leave before the court a quo or for proceeding
under a wrong section, pose the proverbial chicken and egg dilemma. Either point is
dispositive of this application. On that premise, having found that the application
Judgment is
No 06/24
11
Chamber Application No. SC 465/23
prematurely before me, the preliminary point is upheld. I find it not necessary to determine
the other points raised by the second respondent. Neither is it necessary to relate to the merits
of the application.
As regards costs, Mr Maguchu submitted that there would be no need for costs in
the event that any of the preliminary points was upheld. There shall therefore be no order for
costs.
In the result, it is accordingly ordered as follows:
The application be and is hereby struck off the roll with no order as to costs.
Muvingi & Mugadza, applicant’s legal practitioners
Maguchu & Muchada Business Attorneys, respondent’s legal practitioners
Judgment No 06/24
12
Chamber Application No. SC 465/23
