DISTRIBUTABLE
(92)
Judgment
No. SC 121/04
Civil
Appeal No. 169/03
TEMBEDZA NYAKUDYA
CHIGOVANYIKA v (1) DAIRIBOARD
ZIMBABWE LIMITED (2)
PRINCIPAL LABOUR RELATIONS OFFICER
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA & GWAUNZA JA
HARARE,
OCTOBER 28, 2004 & JANUARY 20, 2005
The
appellant in person
J M Mafusire,
for the first respondent
No
appearance for the second respondent
GWAUNZA JA: The appellant was
charged with misconduct and dismissed from his employment with the
respondent, sometime in 1992.
Disregarding the domestic remedies
provided in the relevant Code of Conduct, he unsuccessfully appealed
against his dismissal to
the High Court. The matter was eventually,
and by consent of the parties, referred to a Senior Labour Officer.
It
is not disputed that the Senior Labour Relations Officer to whom the
matter was assigned failed, for one reason or another, to
conclude
and therefore make a determination on, the matter. Ten years later,
the appellant sought to appeal to the Labour
Relations
Tribunal, against the Labour Relations Officers failure to
determine the matter. He also purported to appeal against
his
dismissal from employment. Accordingly, on 15 May 2002, the
appellant filed an application for condonation of his late noting
of
the appeal. The matter was set down for hearing on a date in August
2002. On that date the hearing of the matter was postponed
to 27
September 2002 at 9.00 a.m. The appellant arrived at the Tribunal
later than 9.00 a.m. on this date and found that his application
had
been dismissed. On 3 October 2002, he filed an application with the
Labour Tribunal, for rescission of the order dismissing
his
application. The Labour Tribunal was satisfied that the appellants
default was neither wilful nor deliberate. It however
found, on the
evidence before it, that the appellants application for
condonation of late noting of the purported appeal was unlikely
to
succeed since it was devoid of any merit. On that ground, the
application for rescission of judgment was dismissed.
The
appellant was aggrieved by this decision, and has now appealed to
this Court.
This
appeal is therefore limited to the finding of the Labour Relations
Tribunal that the appellants application for condonation
of the
late filing of an appeal enjoyed no prospects of success.
In
his judgment, the learned President of the Tribunal set out one of
the reasons for such a finding, as follows:
The
Labour Relations Officer (to whom the matter was assigned from the
High Court) did not issue a determination. The appellant
sat back
and did nothing for almost 12 years to file an application of
condonation of late noting of appeal.
It is not clear which
determination he wants to appeal against. He cannot appeal against
the Labour Relations Officer (sic)
because that officer did not issue any determination.
In
my opinion, this reasoning cannot be faulted. Even had the
appellant been able to show that he had a good reason for not
pursuing
his claim timeously, it is evident that the procedure he
chose to adopt in his attempt to do so, was incorrect. It is trite
that
an appeal lies to a higher court only against an order,
decision, judgment or determination made by an inferior court or
tribunal.
Where such determination was not made, there cannot be a
proper appeal.
Apart from the absence of a
determination against which the appellant could properly appeal, it
is not clear on the papers before
the court, what specific relief he
was then, and is now, seeking. It is not for the appeal court to
complete the proceedings commenced
in an inferior court by
substituting its order where none was ever made by the court a
quo. Such a
situation would defeat the whole purpose of an appeal.
As correctly argued in the court
a quo,
the appellant should have sought an order compelling the Labour
Relations Office to give a determination on the matter. It is
such
a determination that he could, if he was so inclined, have properly
appealed against.
The appellant in any case, and by
his own admission, was offered and accepted, his terminal benefits,
as far back as May 1992. The
respondent, in my view understandably,
took this acceptance of the terminal benefits as indicating a final
and mutual settlement
of the matter. The fact that over 10 years
thereafter passed without anything being heard from the appellant,
could only have reinforced
this belief.
It was therefore in my view no
longer open to the appellant to seek to resuscitate a claim that had
long since been concluded.
Even
if the appellant had not chosen to accept the terminal benefits from
the respondent, the Labour Tribunals finding that there
was no
merit in his application for condonation, would still be correct.
The appellants explanation for not having pursued
the matter
timeously, and to its logical conclusion is essentially that, in the
aftermath of his dismissal he had for a long time
suffered both
emotional and psychological trauma that had eventually led to his
seeking psychiatric help. He asserts he also lost
his house and
property to creditors, was deserted by his wife and had to adjust to
life in cramped and rented accommodation. Because
of these
pressures, it is the appellants assertion that he was for 10 years
neither mentally nor emotionally fit to pursue his
claim against the
respondent.
This Court, like the court a
quo, is not persuaded
by these submissions. It is in my view inconceivable that during
the entire ten years in question, there were
no trauma-free periods
during which the appellant could have attempted to pursue his claim.
If he was able to engage in other normal
pursuits like
courting, marrying and starting a family with another wife, he should
in my view, have been able to find the time to
pursue his claim, and
properly. The report prepared by Dr Chikara, the psychiatrist who
attended to the appellant, does not carry
his case any further, since
it was compiled at the end of the ten years in question. There was no
indication that the appellant had
been Dr Chikaras patient for the
duration of that period.
When
all is considered therefore, I am satisfied that the court a
quo correctly found
that
there were no prospects of success in the appellants intended
application for condonation of the late noting of an appeal.
The
appeal is therefore devoid of merit and it is dismissed with costs.
CHIDYAUSIKU CJ: I agree.
SANDURA JA: I agree.
Scanlen & Holderness,
respondent's legal practitioners
