Judgment No S.C. 23\2002

Civil Appeal No 238\2001

SMALL ENTERPRISES DEVELOPMENT CORPORATION v DAVID CHEMHERE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, EBRAHIM JA & ZIYAMBI JA

HARARE FEBRUARY 28 & MAY 9, 2002

P. Nherere, for the appellant

E. Matinenga, for the respondent

EBRAHIM JA: Until 1 April 1999, the respondent was employed by the appellant. In June 1998 he was charged with acts of misconduct. Disciplinary proceedings were taken under the appellant’s code of conduct. The proceedings before the disciplinary committee were concluded in December 1999 and the decision was that the respondent was guilty as charged and should be demoted. The respondent appealed to the appellant’s appeal board which held a fresh hearing in March 1999. It confirmed the finding of guilt, but altered the penalty to one of dismissal. The respondent was advised of the decision on 26 March 1999.

In terms of s 10(1) of the Labour Relations (Settlement of Disputes) Regulations 1993 (SI 30 of 1993), an appeal to the Labour Relations Tribunal “shall be noted within fourteen days of the receipt of the decision, determination, order or direction appealed against”. The respondent should thus have noted an appeal to the Tribunal by 9 April 1999. He did not do so, but instead brought the Board’s decision on review to the High Court. He was within the time limits for doing so. The matter was heard on review on 7 October 1999. The application for review was dismissed on the grounds that the respondent had:-

“Not discharged the onus on him to show that this is a proper case to this court to deal with the matter on review without him having resorted to his domestic remedies.”

The merits of the matter were thus not dealt with by the High Court.

On 7 January 2000, nearly three months after the High Court’s decision was handed down, an application was filed with the Labour Relations Tribunal, seeking condonation of the late noting of an appeal against the appeal board’s decision. Seven months later, the acting Chairman of the Tribunal granted the condonation sought. In doing so, he acted under s 26 of the Regulations previously referred to. He expressed the view that the delay, though inordinate, was not wilful or deliberate. On the prospects of success, he was of the view that because the penalty imposed by the disciplinary committee was not an issue that had been placed before the appeal board, the board arguably should not have interfered with the penalty. No opinion is expressed about the prospects of success on the facts.

The appellant argues that while the Acting Chairman’s decision was a discretionary one, it was so unreasonable as to amount to an improper exercise of his discretion and that relevant considerations were not properly taken into account. Mr Nherere rightly cited ZFC Ltd v Geza 1998 (1) ZLR 137 (S), where it was held that the exercise of a discretion in respect of condonation can only be interfered with where it is grossly unreasonable, capricious or mala fide. There is no suggestion of mala fides, nor could there be.

Mr Nherere argues that the application for review did not preclude the respondent from noting his appeal, or vice versa. He cited Chikonye & Anor v Peterhouse 1999 (2) ZLR 329 (S) at 331 as authority for this submission. In that case, though, the facts were to some extent reversed, the employer had noted an appeal to a senior labour relations officer against a ruling by a labour relations officer, but then, while the appeal was still pending, had applied to the High Court for a declaration that the contracts had been terminated by the effluxion of time. The High Court judge heard the application and decided in the employer’s favour. The Supreme Court was of the view that it would have been preferable for the High Court to have declined jurisdiction, on the grounds that the parties’ domestic remedies had not been exhausted. It did state, though, that the employer was obliged to note an appeal, to keep its position open while it applied to the High Court. The case of Rauties Transport v Voorsitter, Plaaslike Padvervoerraad 1983 (4) SA 146 (W) was cited as authority for the proposition that the noting of an appeal does not deprive the applicant of his right to take the same decision on review.

The respondent argues otherwise: that one cannot both note an appeal against a decision and take the decision on review; one must elect one course or the other.

I do not believe it is necessary to decide this point. It must be accepted that the respondent, on legal advice (which may have been in error), elected to pursue the avenue of review rather than appeal. It is not clear to me why this advice was given. However, the application for review was dismissed, but not on the merits. The High Court, in effect, held that the respondent should have appealed. This he proceeded to do, although there was a delay of some three months after the date of the dismissal of the application for review. The respondent gives an explanation for it. This explanation relates to the confusion that seems to occur all too often when the legal practitioner who has been handling a matter leaves the firm and his cases are allocated to other practitioners in the firm. Matters get overlooked, and things are not completed as expeditiously as they should be, or might have been had the original practitioner not left. The Acting Chairman considered that the explanation given was an acceptable one. I do not consider that he acted grossly unreasonably in so holding, even if I might have been inclined to be less generous to the respondent.

As to the prospects of success, without having sight of the appellant’s disciplinary code, it is not easy to state whether the appeal board could increase the penalty. Assuming it could, though, it seems to have done so without any request by the appellant and without asking the respondent to make representations on the matter. My prima facie view is that if the board was minded to increase the penalty, it should have so indicated, and allowed representations to be made. The finding by the Acting Chairman that there is a reasonable prospect of success cannot, in the circumstances, be said to be irrational.

In the result, therefore, I cannot hold that the Acting Chairman acted irrationally, even if I would not have condoned the late noting of the appeal. The appeal against his decision must, therefore, be dismissed with costs.

CHIDYAUSIKU CJ: I agree

ZIYAMBI JA: I agree

Scanlen & Holderness, appellant's legal practitioners

Kantor & Immerman, respondent's legal practitioners