DISTRIBUTABLE
(27)
Judgment
No. SC 31/04
Civil
Application No. 358/02
W
MKANDHLA v GRAIN MARKETING BOARD
SUPREME
COURT OF ZIMBABWE
HARARE,
MARCH 17 & MAY 19, 2004
Before:
CHEDA JA, In Chambers, in terms of Rule 5 of the
Supreme Court Rules
T
Batasara, for the
applicant
J
Tomana, for the
respondent
CHEDA
JA: The applicant was dismissed from employment by the respondent
following a disciplinary hearing on 20 July 2001.
On
18 September 2001 his appeal to the chief executive officer of
the respondent also failed.
The
applicant noted an appeal to the Labour Relations Tribunal (now the
Labour Court) (the Tribunal) on 8 June 2002.
He accepted
that this appeal was noted after a delay of three months. He told
the Tribunal that he was not aware that he was
supposed to note his
appeal within fourteen days because the Code of Conduct does not
stipulate the time within which to note an
appeal to the Tribunal.
It seems unlikely that the legal practitioners the applicant
approached and instructed to note the appeal
on 26 October 2001
could have failed to advise him of the time limits. He further said
that part of the delay was because
he failed to raise the legal fees.
The end result was that his appeal was noted after a delay of three
months. With this information
before it, and after considering the
prospects of success, the Tribunal dismissed his application for
condonation of the late noting
of his appeal.
The
applicant decided to appeal against the dismissal of that
application. The judgment of the Tribunal was date-stamped by the
Tribunal on 12 September 2002.
On
12 December 2003 the registrar of this Court wrote to the
applicants legal practitioners, advising that the record was
ready
and had been received on 17 October 2003. The registrar called
upon them to file heads of argument within fifteen business
days.
This was not done. The appeal was allowed to lapse on 14 January
2004.
The
application placed before me in Chambers is for the reinstatement of
the appeal. It is obviously a defective application
without a
founding affidavit from the applicant. It cannot be granted for
that reason alone.
However,
assuming that such affidavit may have been left in another file, it
is clear from the documents filed that the appeal lapsed
because of
the negligence of the applicant.
Even
after the appeal lapsed, the applicant did nothing about getting a
copy of the record and asked his new legal practitioners
to obtain it
only three days before the hearing. It is not clear how he would
get the record, compile and file his heads of argument
within those
three days, yet about twelve days passed with nothing being done.
This suggests that the applicant did not intend
to give the matter
the attention it deserved. No application was made for an extension
of time within which to file the heads of
argument.
When
I asked for the opposed application to be heard in Chambers,
Mr Batasara
advised that he had no instructions about arguing the merits of the
appeal, and no affidavit on the merits had been filed.
On
the merits, the record indicates that there is no dispute about the
reasons for the misconduct charge. The applicant failed
to bank or
account for his employers money which should have been in his
possession. He lied about the money being at his house
and was
never able to produce it even when given the opportunity to go and
get it. He only produced the money some days later.
In
view of the above reasons, I am of the view that this appeal should
stand as lapsed and there is no justification for reinstating
it.
No
proper reason has been given to show why the appeal was allowed to
lapse. Rule 31(3) of the Rules of the Supreme Court
was simply
ignored by the applicant.
The
application is dismissed with costs.
Mwonzora
& Associates,
applicant's legal practitioners
Muzangaza,
Mandaza & Tomana,
respondent's legal practitioners
