Judgment No. SC 14/04
Civil
Application No. 286/03
TEL
ONE v (1) B MHIZHA (2) P
MABONEKA
SUPREME
COURT OF ZIMBABWE
HARARE,
FEBRUARY 27 & MARCH 2, 2004
E Mushore, for
the applicant
H Simpson,
for the respondents
Before: ZIYAMBI JA, in
Chambers, in terms of the Supreme Court Rules
The applicant herein seeks
condonation of its failure to note timeously an appeal against the
decision of the labour court.
The judgment was handed down by
the Labour Court on 7 August and received by the applicant on 27
August 2003. Instructions
were given to the applicant's legal
practitioners on 28 August 3003. An advocate was briefed on time to
file the notice of appeal
by 19 September 2003 but was unable to do
so because the record of proceedings was unavailable. There
followed about two months
during which the applicants legal
practitioner, who had not acted for the applicant in the earlier
cases, sought to put the records
together and finally draw the notice
of appeal.
I have considered whether as,
Mr Simpson
argued, the delay is inordinate and the prospects of success on
appeal are non-existent.
I concluded that although the
delay was lengthy it was not, in the circumstances, inordinate and
the prospects of success on appeal
are reasonable, as the respondents
have admitted that they were among the two hundred-and-thirty-eight
involved in the matter of
Peter
John Manyonda & Ors v PTC
SC 110/99 and the question of whether the Labour Relations Officer
had jurisdiction to entertain the applications brought by the
respondents in terms of s 93 of the Labour Relations Act or
whether their dispute had, by then, prescribed could be decided
in
the applicants favour although the labour relations officer
apparently found that the disputes had not prescribed.
Also, in view of the
respondents admission in the opposing affidavit that they were
involved in the earlier case SC 110/99, a
claim of res
judicata might well
succeed.
The third issue which it is
sought to have determined on appeal is that the Tribunal was of the
view that the issue of prescription,
having been raised before the
Labour Relations Officer and decided in favour of the respondents,
could not be raised before it in
the absence of a cross-appeal by the
applicant. The applicant, on the other hand, is of the view that
this being a point of law
it can be raised at any time, irrespective
of whether or not there was a cross-appeal.
In my view
this is a point of law which ought to be decided by the Court and not
by a single judge in chambers. Accordingly, the
application is
upheld and an order is issued in terms of the draft order filed of
record.
Coghlan
Welsh & Guest,
applicants legal practitioners
Manase &
Manase, respondents
legal practitioners
