Judgment No. SC 10/07
Civil Application No.
51/04
JOHANNES MAKONYE v
BARCLAYS BANK OF ZIMBABWE LIMITED
SUPREME COURT OF
ZIMBABWE
HARARE, MARCH 15, 2007
E T Matinenga,
for the applicant
G V Mamvura, for
the respondent
Before:
SANDURA JA, In Chambers, in terms of r 31(7) of the Rules
of the Supreme Court, 1964
This was an application for an extension of the time in which to
appeal. After hearing both counsel, I dismissed the application
with costs and gave brief reasons for that decision. The applicant
has now requested that the reasons be given in writing, and
I now set
them out.
The background facts are as follows. At the relevant time the
applicant (Makonye) was employed by the respondent (the
Bank) as the manager of its Gweru Branch, and had been in the
service of the Bank for over twenty years.
In July 2001 Makonye was charged with committing an act, conduct or
omission inconsistent with the fulfilment of the express or
implied
conditions of his contract of employment with the Bank. In support
of the charge, the Bank alleged three particulars
The first particular was that from the beginning of 2000 to June
2001 Makonye operated an unauthorised overdraft facility on his
current account with the Bank. It was alleged that on 1 June
2001 the overdraft on his account was $1 291 130.00.
The second particular was that during the relevant period Makonye
granted himself seven loans totalling $2 566 392.00
without
seeking the authority of his immediate superior. In this
connection, it was also alleged that after his transfer from Gweru
he
continued to abuse his authority and obtained two additional loans
from the Gweru Branch without the authority of his immediate
superior.
And the third particular was that Makonye authorized the granting
of loans to a Mr Dube (Dube), who was employed by
the Bank
at the Gweru Branch, which exceeded the amount Dube could borrow from
the Bank in terms of the laid down procedures.
A disciplinary hearing was subsequently held and Makonye was found
guilty and dismissed. His appeals to the Appeals Board and
to the
Labour Court were unsuccessful.
Thereafter, acting through his legal practitioner, he noted an
appeal to this Court. However, the legal practitioner later
realised
that the notice of appeal he had filed on behalf of his
client was fatally defective. He, therefore, filed a Chamber
application
seeking an extension of time in which to appeal. On
15 March 2007 I dismissed the application with costs.
Before dealing with the fatal defects in the notice of appeal filed
on behalf of Makonye, I would like to set out the relevant
provisions
of the Supreme Court (Miscellaneous Appeals and References) Rules,
1975 (the Rules) which should have been complied
with.
Rules 5, 6 and 7 of the Rules read as follows:
5. Time 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 of appeal
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 an appeal.
7. Contents of
notice of appeal
A notice instituting
an appeal shall state
(a) the tribunal or officer whose decision is appealed against; and
(b) the date on which
the decision was given; and
(c) the grounds of
appeal; and
(d) the exact nature of
the relief sought; and
(e) the address of the
appellant or his legal representative.
Makonyes appeal to the Labour Court was heard on 2 October
2003. After hearing the appeal the Labour Court reserved its
judgment. The judgment was later handed down or given, either on
16 January 2004 (i.e. the date on which the President of
the
Labour Court initialed the last page of the judgment), or on
21 January 2004 (i.e. the date on the Labour Courts stamp
appearing on the first page of the judgment). However, I shall
assume in favour of Makonye that the judgment was handed down or
given on 21 January 2004.
After the judgment had been handed down or given, Makonyes legal
practitioner filed a notice of appeal on 19 February 2004.
The
notice of appeal was fatally defective in two respects
The first fatal defect was that the notice of appeal was not filed
within fifteen days of the decision appealed against being given,
as
required by r 5 of the Rules. And the second fatal defect was
that the notice of appeal did not state the date on which
the
decision appealed against was given, as required by r 7(b) of
the Rules.
When Makonyes legal practitioner prepared the application for an
extension of time within which to appeal he must have been
under the
misapprehension that the only defect in the notice of appeal which
called for an explanation was the failure to state the
date on which
the decision appealed against was given. I say so for two reasons
The first reason is that nowhere in his founding affidavit did the
legal practitioner explain the failure to note the appeal timeously,
i.e. within the fifteen days referred to in r 5 of the Rules.
And the second reason is that in para 3 of the founding
affidavit the legal practitioner made it quite clear that the only
defect which had prompted the application was the omission to
state
the date when the decision appealed against was given. The
paragraph reads as follows:
This application has been necessitated by the fact that the notice
of appeal filed of record does not strictly comply with the
Supreme
Court Rules in the sense that it did not spell out the date when
judgment was delivered.
In the circumstances,
no explanation whatsoever was given for the failure to note the
appeal timeously, and no special circumstances
as envisaged by r 6
were shown in order to justify the extension of the time within which
to appeal.
The application could not, therefore, succeed and was dismissed
with costs.
Atherstone &
Cook, applicant's legal practitioners
Scanlen &
Holderness, respondent's legal practitioners
