REPORTABLE (13)

Judgment No. SC 16/04

Civil Appeal No. 116/03

AIR ZIMBABWE (PRIVATE) LIMITED v

(1) TARIRO PATSIKADOVA (2) EDMORE CHINOWAITA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & GWAUNZA JA

HARARE, JANUARY 20 & MARCH 18, 2004

R M Fitches, for the appellant

The respondents in person

CHEDA JA: The two respondents were employed by the appellant. They were charged with misconduct and, after a hearing, were dismissed.

The respondents applied to the High Court for a declaratory order to the effect that their discharge was null and void. The application was based on the following –

(a) The Code of Conduct used by the appellant had not been registered in terms of the Labour Relations (Employment Codes of Conduct) Regulations, 1990;

(b) The disciplinary committee which discharged the respondents usurped the functions of the hearing committee by hearing the matter itself;

(c) The hearing committee was improperly constituted, in that it was not chaired by a head of division and some members thereof were not employees of the appellant;

(d) The charges were not properly formulated, in that it was not clearly indicated how the factual allegations constituted misconduct; and

(e) The decision was not based on the allegations and the evidence.

The High Court, after dealing with the procedural defects, ordered that:

“1. The discharge of the applicants is set aside;

2. The respondent reinstate the applicants without loss of benefits and pay them their full salary and benefits from the date of their discharge;

3. The respondent pay the applicants’ costs.”

The above judgment was handed down on 26 March 2003.

On 14 April 2003 the respondent, now the appellant, filed a notice of appeal. The grounds of appeal were as follows -

(1) The learned judge erred in finding that the Code of Conduct for Air Zimbabwe Corporation was not applicable to the respondents, effectively ruling that the appellant had no Code of Conduct in terms of which it could internally discipline its workforce; and

(2) The learned judge erred in finding that factually there was no evidence that the respondents were guilty of the charge of misconduct, i.e. acting in a manner which brings, or is likely to bring, unjustified scorn or disrepute upon the Corporation’s image, yet both the respondents confessed to it.

The background to this matter is a cause for concern. The manner in which the appellant handled the matter suggests that procedural requirements were simply ignored at different stages of the case.

When the application by the respondents was served on it, no action was taken to oppose the matter. As a result, default judgment was entered against the appellant.

The appellant then applied for rescission of the judgment. Once the application for rescission was filed, no steps were taken by the appellant until the respondents set the matter down after realising that the appellant was doing nothing about it. The default judgment was eventually rescinded.

The matter then went to trial and judgment was granted against the appellant. The appellant then filed a notice of appeal.

By letter dated 19 May 2003 the registrar of this Court called upon the appellant to file heads of argument within fifteen business days. The appellant did not do so.

By letter dated 26 August 2003 the registrar of this Court pointed out to the appellant that it had been advised again on 22 July 2003 to file heads of argument but it had not done so. It was advised that the appeal was therefore deemed to have been abandoned and accordingly dismissed. Again, according to the affidavit of the first respondent, the appellant did nothing until the respondents sought to enforce the judgment they obtained.

On 4 July 2003, in seeking reinstatement of its appeal by way of chamber application, the appellant had asked to be allowed to file its heads of argument within fifteen days of the granting of the order. The application was successful. The appellant then did nothing about filing the heads of argument. It now claims that they had not been informed of the outcome of the application, yet it never checked to find out if its chamber application was successful. That is why the registrar had to call upon them again on 22 July 2003 to file its heads of argument.

When the appellant realised that the appeal was set down for hearing, again it failed to file its heads of argument timeously. It filed them late, adding that at the hearing of the matter an application would be made to the Court for condonation of the late filing of the heads of argument.

The affidavits filed on the issue of condonation, and the information therein, are such that I am not satisfied that the appellant has given reasons that can be acceptable to the Court for its failure to comply with the Rules of this Court. The failure to do so was consistent all along from the very beginning of this matter.

It is not correct to say that the Court should not penalise the appellant for the delay by its legal practitioners in a case like this because even the appellant itself admits filing away some documents without referring them to the legal practitioners and often did nothing in the form of a follow-up. Accordingly, both the appellant and its legal practitioners are to blame.

In P E Bosman Transport Works Committee and Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (AD) it was held at p 799 that:

“In a case such as the present, 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 acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.”

In Saloojee and Ano NNO v Minister of Community Development 1965 (2) SA 135 (AD) at p 138 the court held as follows:

“It is necessary once again to emphasise, as was done in Meintjies v HD Combrinck (Edms) Bpk 1961 (1) SA 262 (AD) at p 264, that condonation of the non-observance of the Rules of this Court is by no means a mere formality. It is for the applicant to satisfy this Court that there is sufficient cause for excusing him from compliance, and the fact that the respondent has no objection, although not irrelevant, is by no means an overriding consideration …”.

In Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (AD) at p 449 and in Meintjies’ case supra it was held that:

“… an appellant should, whenever he realises that he has not complied with a Rule of Court, apply for condonation without delay.”

The appellant did not do so in this case, even when it was advised of the need to file papers and what would happen if it failed to do so.

On the merits, and without going into details about the grounds for appeal, it is clear that the charge against the respondents did not tie up with the one stated in the Code of Conduct. The charge read:

“… acting in a manner which brings or is likely to bring unjustified scorn or disrepute upon the Corporation’s image, p 4, item 3(1), abuse of staff travel/cargo carriage concessions as per Staff Regulations Manual.”

Nothing specific is alleged. The respondents were not told how their carrying of cigarettes could bring unjustified scorn or disrepute upon the appellant’s image. It is not clear how the carrying of cigarettes is said to offend against staff travel/cargo carrying concessions as per the Staff Regulations Manual.

The respondents were entitled to know the nature of the breach of the Code of Conduct they had to answer.

We are not told what the Staff Regulations provide. My understanding of cargo carriage concessions is that the respondents could, as members of staff, be allowed cargo up to a certain weight, or weight exceeding the general limit for each person or passenger, but without any details it is not possible to establish what the breach was in this case.

I am of the view that even on the merits the appeal is not likely to succeed.

At the disciplinary hearing the respondents were asked about smuggling cigarettes. This was not proper, as there was no offence of smuggling cigarettes according to Customs. The respondents said they were going to pay duty in Mauritius. Taking the cigarettes out of Zimbabwe did not amount to smuggling.

I am not persuaded that the appellant has made out a case for condonation to be granted. I believe the case would fail even on the merits. Accordingly, condonation of the late filing of heads of argument is refused.

The appeal is dismissed with costs.

CHIDYAUSIKU CJ: I agree.

GWAUNZA JA: I agree.

Sawyer & Mkushi, appellant's legal practitioners