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 applicant’s 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 employer’s 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
