REPORTABLE
(69)
Judgment
No. SC 88/04
Civil
Application No. 406/02
LEE GROUP
OF COMPANIES v ANN CLARE ELDER
SUPREME
COURT OF ZIMBABWE
HARARE,
JUNE 30 & OCTOBER 6, 2004
B
Mtetwa, for the
applicant
The
respondent in person
Before:
MALABA JA, in Chambers, in terms of Rule 39(1) of the Supreme
Court Rules
This
is an application for an order of reinstatement of an appeal regarded
as abandoned and deemed to have been dismissed in terms
of
subrule (1) of Rule 44 of the Supreme Court Rules (the
Rules).
On
6 December 2002 the applicant filed a notice of appeal against
the whole judgment of the Labour Relations Tribunal (the
Tribunal) delivered on 14 November 2002. On 31 March
2004 the registrar of this Court (the registrar), acting
in
terms of subrule (1) of Rule 43 of the Rules, sent a letter
to the applicants legal practitioners calling upon them
to file
heads of argument within fifteen days after the date of notification
and warning that should they fail to comply with the
requirement the
appeal would be regarded as abandoned and deemed to have been
dismissed.
The
applicants legal practitioners received the notification on
5 April 2004, two days into the first term vacation. Heads
of
argument were not filed within the time limit specified in the
written notification. On 4 May 2004 the registrar wrote
to the
applicants legal practitioners indicating that the appeal was, in
terms of subrule (1) of Rule 44 of the Rules
regarded as
abandoned and deemed to have been dismissed.
On
10 May 2004 the applicants legal practitioners wrote to the
registrar in these terms:
Thank
you for your letter dated 4 May 2004 and received by us on 5 May
2004. We received your notice on 5 April 2004
which was the
last week of the first term. We immediately briefed counsel to
prepare heads of argument but as
the reckoning of time period for the filing of heads excludes the
period of vacations we believed the heads would be due on 18 May
2004. As we
understand it, this is because most advocates are away during the
vacation and the High Court has in fact accepted this
interpretation
of the Rules. However, we have never had to deal with this
interpretation in the Supreme Court and we would be grateful
if you
could kindly advise whether the Supreme Court accepts such an
interpretation.
When
the registrar refused to accept that the reckoning of the time
specified in the written notification of 31 March 2004
was
wrong, an application for an order of reinstatement of the appeal was
made on 28 May 2004. The explanation given for non-compliance
with subrule (2) of Rule 43 of the Rules was that the legal
practitioners believed that the days when the court was on vacation
were excluded from the reckoning of the time within which heads of
argument were required to be filed with the registrar.
Ms Mtetwa,
for the applicant, argued that there was an omission in the Rules to
provide, as was done under Rule 238(2a)(i) of the High
Court of
Zimbabwe Rules (the High Court Rules), that in computing the
time within which heads of argument are required to be
filed before
applications, exceptions or applications to strikeout were set down
the period during which the court is on vacation
shall be excluded.
She stated that she believed that Rule 238(2a)(i) was applicable
to the reckoning of the time within which
heads of argument were
required to be filed because subrule (1) of Rule 58 of the
Rules provided that in any mater not
dealt with in its Rules the
practice and procedure in the Supreme Court shall, subject to any
direction to the contrary by the Court
or a judge, follow, as near as
may be, the practice and procedure of the High Court.
It
is clear that Rule 58 of the Rules is only applicable where
there has been an omission in the Rules to deal with a matter
and not
where, as in this case, the matter is dealt with in the Rules in a
manner which is different from the practice and procedure
of the High
Court.
Rule 3
of the Rules provides that:
Where
anything is required by these Rules to be done within a particular
number of days or hours, a Saturday, Sunday or public
holiday shall
not be reckoned as part of the period.
In
terms of Rule 3, the reckoning of the time within which the
applicant was required under subrule (2) of Rule 43
of the
Rules to file heads of argument included all days embracing the
period when the court was on vacation except Saturdays, Sundays
or
public holidays. Rule 3 of the Rules differs from
Rule 238(2a)(i) of the High Court Rules in that it deals with
the
period when the Court is on vacation by requiring that it be
included in the reckoning of the time within which heads of argument
are required to be filed under subrule (2) of Rule 43 of
the Rules, whilst the latter deals with the same period by requiring
that it be excluded from the computation of the time within which
heads of argument are to be filed in the High Court before
applications,
exceptions or applications to strike out can be set
down for hearing.
It seems to me that Ms Mtetwa
acted upon her belief that Rule 238(2a)(i) of the High Court
Rules was applicable to the reckoning of the time within which
to
file heads of argument as required by subrule (2) of Rule 43
of the Rules without having carefully studied the provisions
of
Rule 3 of the Rules.
The
fact that the time within which the applicant ought to have filed the
heads of argument in the appeal included the period when
the Court
was on vacation lends support to the explanation that non-compliance
with the Rules was due to a genuine but mistaken belief
that the
period when the Court was on vacation was not included in the
reckoning of the time within which to file heads of argument.
I
accept the explanation as reasonable.
The delay in making the
application for an order of reinstatement of the appeal was eight
days, which is not an inordinate delay.
In Ellis
and Anor v Maceys Stores Ltd
1983 (2) ZLR 17 (S) the extent of the delay of eight days to note an
appeal was held to be by no means inordinate and an explanation
that
non-compliance with the Rules was as a result of a misinterpretation
of Rule 30 of the Rules, influenced by the position
under the
High Court Rules, was also accepted as a reasonable explanation.
It
was argued that the applicant had good prospects of success on
appeal. The contention was that the Tribunal applied wrong
principles
of law to the facts and directed its mind to matters that
had not been placed before it for determination. The question the
Tribunal
ought to have determined was whether or not the respondent
had resigned from employment.
It does appear that the Tribunal
failed to apply the correct law to the resolution of the dispute
between the parties. It cannot
be said on the merits that the
prospects of the appeal succeeding are not reasonable.
I
would accordingly grant the order for the reinstatement of the appeal
in terms of the draft order.
Kantor & Immerman,
applicant's legal practitioners