Judgment No. HB 88/2004

                                                                                    Case No. HC 1930/2001

CHRISTIE ODSON

And

MIND MAKUVIRE

Versus

NATIONAL RAILWAYS OF ZIMBABWE

And

THE GENERAL MANAGER, NATIONAL RILWAYS

OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 2 MARCH 2003 AND 24 JUNE 2004

C T Hikwafor the applicants

T Sibandafor the respondents

Opposed Application

            NDOU J:        I dismissed the application with costs and intimated that the reasons for doing so will follow.  These re the reasons.

            The applicants were charged with theft of 5 x 900 x 20 tyres and one Lister engine the property of the National Railways of Zimbabwe (hereinafter referred to as NRZ).  They were alleged to have sold the stolen items to one Never Dube.  The NRZ has a registered code of conduct.  Charges of misconduct were preferred against the two applicants.  In terms of the code of conduct two ways may be used to deal with disciplinary hearings i.e. clause 9 and clause 15.

            Clause 15 route is used for a case which prima facie constituted a serious misconduct.  In terms of clause 15.1.1 the trade union concerned reserves the right to call a Disciplinary Inquiry “giving good reasons for doing so”.  Such a hearing is commenced by a written notice and is heard by a Commission of Inquiry. 

                                                                                                                        HB 88/04

Presumably, purporting to act in terms of clause 15.1.1 the applicant’s trade union, the Railways Artisan Union, on 8 November 2000, requested for the convening of a Disciplinary Inquiry, but, not only did they fail to give good reasons for doing so but failed to give any reason for their request.  There was non-compliance with the requirements set out in clause 15.  The respondent, in the circumstances, did not accede to their request and chose the route provided for in clause 9.  The latter route is used for any misconduct commenced by Form “A” and is heard by an empowered official.  From their papers it is clear that the applicants are confusing the two procedures.

            The application for review does not comply with provisions of order 33, High Court Rules, 1971 in many respects and there is no further explanation why the applicants approached this court directly instead of the Labour Tribunal.

Non-compliance with order 33

In my view, firstly, this application does not comply with rule 257 which provides-

“The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for” – Manica Zimbabwe Ltd v Chairman, Labour Relations Board & Anor HH-239-91.

            Secondly, and more importantly, this application was brought well over six months after the termination of these proceedings.  An application which does not comply with rules is fatally defective and invalid.  It is a nullity.  It is incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper review application to be filed, it must be dismissed with costs – De

                                                                                                                        HB 88/04

Jagerv Diner & Anor 1957(3) SA 567(A) at 574C-D and Jensen v Acavales 1993(1) ZLR 216 (S) at 219H-220D.

            I appreciate that rule 4 C (a) bestows on this court a direction to depart therefrom in the interest of justice.  I am, however, guided by what DUMBUTSHENACJ said in S v McNab 1986(2) ZLR 280 (SC) at 284E-

“I have dwelt at length on this point because it is my opinion that laxity on the part of the court in dealing with non observance of the rules that will encourage some legal practitioners to disregard the rules of court to the detriment of the good administration of justice.” – See also McFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) and Hattingh v Pienaar 1977(2) SA 182 (O).  Further, GUBBAYCJ, in Forestry Commission v Moyo 1997(1) ZLR 254 (S), said at 259A-B-

“Insofar as the High Court Rules are concerned, rule 4C(a) permits a departure from any provision of the rules, where the court or judge is satisfied that the departure is required in the interests of justice.  The provisions of the rules are not strictly peremptory; but as they are there to regulate the practice and procedure of the High Court, in general strong grounds would have to be advanced to persuade the court or judge to act outside them.”

And at 259D-E the learned Chief Justice went on the say –

“Rule 259 of the High Court Rules, on the other hand, requires an application for review to be instituted within eight weeks of the termination of the proceedings in which the irregularity or illegality complained of is alleged to have occurred.  Its proviso allows the court to extend the time for good cause shown.  In other words, where the application for review has been brought out of time, condonation for the failure to comply with rule 259 must be sought.  If authority is required for this self evident concept, it is to be found in Bishi v Secretary for Education 1989(2) ZLR 240 (H) at 242D; and Mushaishi v Lifeline Syndicate & Anor 1990(1) ZLR 284 (H) at 288E-F.  The court is entitled to refuse to review or may condone the omission.  It exercises a judicial discretion while taking into consideration all relevant circumstances.”

            The respondents, pointed out the non-compliance by the applicants in their opposing papers.  The applicants adopted a cavalier attitude towards the issue of the non-compliance and merely stated in their answering affidavits that “there is an application for condonation within my application”.  There is no such application. 

                                                                                                                        HB 88/04

What is required is a substantive application and not a mere reference to condonation in an answering affidavit.  In this regard the learned Chief Justice, in the Forestry Commission v Moyo case supra, said at 260D-G-

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was on the face of it, a grave non-compliance with rule 259.  For it is the making of the application that triggers the discretion to extend time.  In Matsambire v Gweru City Council S-183-95 (not reported) this court held that where proceedings by way of review were not instituted within the specified eight week period and condonation of the breach of rule 259 was not sought, the matter was not properly before the court.  I can conceive no reason to depart from that ruling.  One only has to have regard to the broad factors which a court should take into account in deciding whether to condone such non-compliance, to appreciate the necessity for a substantive application to be made.  They are:-

1. that the delay involved was not inordinate, having regard to the circumstances of the case;
2. that there is a reasonable explanation for the delay;
3. that the prospects of success should the application be granted are good; and
4. the possible prejudice to the other party should the application be granted –

See Director Civil Aviation v Hall 1990(2) ZLR 354 (S) at 357D-G.  How can a court exercise a judicial discretion to condone when the party at fault places before it no explanation for the delay?  Moreover, in every such application the respondent is entitled to be heard in opposition.  He must be permitted an opportunity to persuade the court that the indulgence sought is not warranted.  Without hearing him how can a court, for instance, be satisfied that he will suffer no possible prejudice by the condonation.”

In casu, there is no such substantive application for the indulgence sought.  See also Sumbereru v Chirunda 1992(1) ZLR 240(H); Makaruse v Hide and Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S) and Wilmot v Zimbabwe Owner Driver Organisation (Pvt) Ltd 1996(2) ZLR 415 (S).    On this reason alone the application should fail.

Failure to exhaust domestic remedies

            In this case the applicants should have appealed to the Labour Tribunal.  They chose, instead, to approach this court by way of review, thus by-passing the Labour

                                                                                                                        HB 88/04

Tribunal.  It is trite that in such labour matters, a litigant should exhaust his or her domestic remedies, before approaching this court unless there are good reasons for not doing so.  In casu, the applicants did not proffer any reasons, let alone good ones for not exhausting domestic remedies.  For this reason the application should fail – Musandu v The Chairperson of Cresta Lodge Disciplinary and Grievance Hearing Committee HH-115-94; Tutani v Minister of Labour, Manpower Planning & Social Services & Ors 1987(2) ZLR 88 and Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996(1) ZLR 613.

            From the foregoing reasons, individually or cumulatively the application should fail with costs.  It was for the said reasons that I dismissed the application with costs.

Mabhikwa, Hikwa & Nyathi, applicants’ legal practitioners

James, Moyo-Majwabu & Nyoni, respondent’s legal practitioners