DISTRIBUTABLE
(84)
Judgment
No. SC 96/05
Civil Appeal No. 217/04
GIFT
MUSIYARIRA v
RUFARO MARKETING
(PRIVATE) LIMITED
SUPREME COURT OF
ZIMBABWE
SANDURA JA, MALABA
JA & GWAUNZA JA
HARARE, SEPTEMBER 19,
2005 & MARCH 30, 2006
The appellant in person
J Muchada, for
the respondent
MALABA JA: This appeal is against the judgment of the Labour
Court dated 2 July 2004 dismissing with costs an application
for
condonation of the late noting of an appeal from a decision of the
respondents chief executive officer that the appellant
be
dismissed from employment.
The appellant had
been charged under the respondents Code of Conduct with an act of
misconduct, in that he had in the course
of employment stolen
forty-four litres of bulk beer. The disciplinary committee before
whom he appeared to answer the charge found
him guilty and ordered
that he be dismissed from employment. The appellant appealed to the
chief executive officer who, on 23 May
2002, dismissed the
appeal.
The appellant ought
to have filed a notice of appeal against the decision of the chief
executive officer within fourteen days of
its being made. He did
nothing until 22 September 2002. The explanation he gave for
the failure to note the appeal timeously
was that he did not know
that he had a right to appeal. He also said that he did not know
the procedure to be followed in noting
the appeal to the Labour
Court. He sought to note the appeal at the time he did because of
advice from friends.
On the prospects of
success, the appellant had argued before the Labour Court that there
were irregularities in the proceedings
before the disciplinary
committee, in that the regional manager of the respondent sat as a
member of the committee. He also complained
that he was not given
an opportunity to call witnesses to say that he had not stolen the
beer.
The learned President
of the Labour Court held that the explanation for the inordinate
delay in noting the appeal was unacceptable.
The appellant had been
represented by a legal practitioner at the hearing before the chief
executive officer. The legal practitioner
would have advised him of
what to do and when, had he expressed an intention to appeal against
the decision dismissing him from employment.
The length of the
period he took before he sought to note an appeal to the Labour Court
and the fact that he was jolted into action
by the advice of friends
suggest that he did not have the intention of appealing against the
decision of the chief executive officer.
It is also clear that
the appellant had used the procedure under the Code of Conduct to
appeal against the decision of the disciplinary
committee. He could
not then profess ignorance of the provisions of the same Code of
Conduct granting him the right to appeal to
the Labour Court from the
decision of the chief executive officer.
The learned President
of the Labour Court also held that there were no prospects of success
on appeal. She found that the regional
manager was a complainant at
the proceedings before the disciplinary committee and not a member of
the committee. He was not a
deliberating member.
On the complaint that
the appellant was not allowed to call witnesses, the court a quo
observed that the appellant was legally represented and had not
indicated that he wanted to call particular witnesses other than
those who gave evidence.
Condonation of the
late noting of an appeal and granting an extension of time within
which an appeal is to be noted are matters
within the discretion of
the court of first instance. Unless it has been shown that the
learned President of the Labour Court misdirected
herself in
dismissing the application, this Court will not interfere with the
exercise of that discretion.
The delay was indeed
inordinate. The explanation given for the delay was correctly found
unacceptable. There is nothing to gainsay
the finding by the court
a quo that there were no prospects of success on appeal.
The appeal is
therefore dismissed with costs.
SANDURA JA: I
agree.
GWAUNZA JA: I
agree.
Dube, Manikai &
Hwacha, respondent's legal practitioners
