No. SC 17/04
Appeal No. 290/02
CHARTERED BANK OF ZIMBABWE LIMITED
COURT OF ZIMBABWE
MALABA JA & GWAUNZA JA
MARCH 11, 2004
Bhatasara, for the
Uriri, for the
After striking this matter off the roll with costs the Court
indicated that its reasons for doing so would
be given in due course.
I now set them out.
essential facts are these. The appellant (Mukome) was
employed by the respondent (the Bank) as a purchasing manager.
In March 2000 she was charged with an act of misconduct in terms of
the Banks Code of Conduct (the Code). She appeared
a hearing officer and was found guilty and subsequently dismissed.
appealed to the grievance and disciplinary committee but the appeal
was dismissed. She then appealed to the appeals board
successful. The appeals board was of the view that she should have
been found guilty of committing a less serious act of
the one in respect of which she was found guilty. Accordingly, it
set aside the dismissal and substituted a first
The Bank then appealed to the
Labour Relations Tribunal (now the Labour Court) (the Tribunal)
and the appeal was allowed with
costs. The decision of the appeals
board was set aside and Mukomes dismissal was approved. The
Tribunals judgment was handed
down on 9 December 2002.
Aggrieved by the Tribunals
decision, Mukome filed a notice of appeal in this Court on 7 March
2003, i.e. about three months
after the judgment had been handed
Subsequently, on 4 February
2004 the legal practitioner acting for Mukome, who is not the one who
appeared before us, filed
heads of argument on Mukomes behalf.
In the heads of argument she indicated that at the hearing of the
appeal: Counsel will
apply for condonation for the late filing of
the appellants notice of appeal.
Thereafter, on 10 March
2004, i.e. the day before the appeal was due to be heard, the
legal practitioner who had filed
the heads of argument filed a court
application in this Court seeking an order condoning the late filing
of the notice of appeal.
The obvious intention was that on the day
of the hearing of the appeal the Court application would be
argued first, and that,
if it succeeded, the appeal would then be
There can be no doubt that the
procedure adopted by the legal practitioner then acting for Mukome
was not in accordance with the
Rules of this Court.
The noting of an appeal against
a decision of the Tribunal is governed by rules 4, 5 and 6 of the
Supreme Court (Miscellaneous Appeals
and References) Rules, 1975
which read as follows:
(1) An appeal shall be
instituted by means of a notice directed and delivered by the
appellant to the presiding officer of the tribunal
or the officer
whose decision is appealed against, and to all other parties
notice shall also be filed with the registrar.
within which notice to be given
Subject to the provisions of
rule 6, a notice shall be delivered and filed in accordance with
the provisions of rule 4
within fifteen days of the decision
appealed against being given.
6 Condonation of late noting
Save where it is expressly or by
necessary implication prohibited by the enactment concerned, a judge
may, if special circumstances
are shown, extend the time laid down,
whether by rule 5 or by the enactment concerned, for instituting
is clear from the provisions of rule 6 that the application for
an extension of the time within which to appeal must be
made to a
judge in Chambers. It is a Chamber application as opposed to a
Court application. The application must obviously be
served on the
respondent, who must be given adequate time within which to file a
notice of opposition and an opposing affidavit or
affidavits, if he
intends opposing the application.
no Chamber application for the extension of the time within which to
note the appeal had been made and granted in this case,
there was no
appeal before us and the matter had to be struck off the roll with
MALABA JA: I agree.
GWAUNZA JA: I agree.
Kantor & Immerman,
appellant's legal practitioners
respondent's legal practitioners