DISTRIBUTABLE (101)

Judgment No. SC. 129/04

Civil Application No. 194/04

GEDDES LIMITED v SHEPHERD BWANYA

SUPREME COURT OF ZIMBABWE

HARARE, SEPTEMBER 15 & 29, OCTOBER 13, 2004 & JANUARY 26, 2005

G Gabu, for the applicant

J B Colegrave SC, for the respondent

Before: MALABA JA, In Chambers, in terms of Rule 31 of the Rules of the Supreme Court of Zimbabwe

This application is for an extension of time in which to appeal against a judgment of the High Court handed down on 28 April 2004 and for condonation of non-compliance with Rule 30 of the Rules of the Supreme Court of Zimbabwe (“the Rules”).

The historical events relevant to the determination of the application are these. The respondent, who was employed by the applicant as a financial director, was on 11 January 2002 suspended pending investigations by external auditors into allegations of misconduct. Although the letter of suspension had not informed the respondent that the suspension was on full pay and other benefits, the applicant made that clear in the subsequent letter written to him on 15 January 2002. Consequently, the respondent had the right to retain possession of the Mazda B 2500 5DX motor vehicle during the period of suspension.

In the letter of 15 January 2002, the applicant advised the respondent of what it intended doing after his suspension. It stated:

“We will contact you when the investigation is complete, which we hope will be by 31 January 2002. Your case will be referred to the Audit Committee of the Board, who will decide whether or not to take action on the matter and whether or not to proceed with your dismissal. If it is found that you are guilty of the misconduct which has been alleged, we will then apply to the Ministry of Labour to terminate your contract of employment on the grounds of misconduct in accordance with the termination of employment regulations SI 371 of 1985.

It is likely that we will be applying for the termination of your employment on the basis of ‘Section 2(d)(i) any act, conduct or omission inconsistent with the express or implied conditions of his contract of employment’.

Please note that if you are found guilty of misconduct, and if we decide to apply to the Ministry for authority to dismiss you, then the suspension from that time will be without pay and benefits.” (the underlining is mine)

The investigation by the external auditors was completed and the report on its findings submitted to the audit committee of the board. The conclusion drawn by the audit committee from the consideration of the report is not apparent from the papers. In particular, it is not stated that the audit committee “found” the respondent “guilty of misconduct”. Presumably following a decision to do so, an application was, however, made to a labour relations officer on 8 April 2002 in terms of s 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (“the Regulations”) for an order or determination terminating the respondent’s employment.

Section 3(1) of the Regulations provided that:

“Where an employer has good cause to believe that an employee is guilty of misconduct the employer may suspend such employee without pay and other benefits and shall forthwith apply to a labour relations officer for an order or determination terminating the contract of employment.”

The ground on which the application was made was that the respondent had committed an “act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract”. The particulars of the misconduct were then set out.

On 11 April 2002 the applicant wrote to the respondent, advising him of the fact that payment of his salary had been withheld and demanding the return of the motor vehicle. The applicant justified its demand by saying that in terms of its letter of 15 January 2002 the making of the application for authority to dismiss the respondent from employment had changed the suspension he was serving into one without pay and benefits. The argument was that the respondent’s right to payment of a salary and possession of the motor vehicle had ceased.

The respondent refused to surrender the motor vehicle, arguing that the applicant had not suspended him without pay and benefits in terms of the Regulations. An application was made to the High Court for an order directing the respondent to deliver the motor vehicle to the applicant, failing which the Deputy Sheriff or his lawful assistant be authorised to attach, take possession of and deliver the same to the applicant. The respondent opposed the application. The question for determination by the High Court was whether he had been suspended without pay and other benefits in terms of s 3(1)(a) of the Regulations.

On 28 April 2004 the High Court held that the respondent had not been suspended without pay and other benefits and dismissed the application with costs on a legal practitioner and client scale. The learned judge said:

“It is difficult to understand how the applicant ceased the respondent’s salary and benefits … when his suspension was on full pay and benefits. What it ought to have done was to formally suspend the respondent with or without pay and benefits and then, forthwith, ought to have applied to a labour relations officer for permission to terminate the contract of employment. It was not proper for the applicant to withdraw the respondent’s benefits when his suspension was with full pay and benefits without issuing a fresh suspension without salary and benefits.”

If the applicant was desirous of appealing against the judgment of the High Court, it was bound by Rule 34 of the Rules to institute the appeal within fifteen days of the judgment being given. That was not done. On 14 June 2004 an application was made for an extension of time in which to note the appeal and for condonation of non-compliance with the Rules. There was a delay of forty-five days from the date the judgment was given to the day the application for an extension of time was made. There was a delay of seventeen days from the expiry of the period in which the appeal should have been noted to the date the application for condonation was made.

The explanation given by the applicant for the delay was that it laboured under the misconception that the days within which to note an appeal were reckoned from when it received a copy of the judgment from its legal practitioners on 12 May 2004. As to why the appeal was still not instituted within fifteen days of the date it received the judgment, the applicant said its officers were still deliberating on the need to appeal against the judgment.

The applicant averred that the appeal had good prospects of success should the application be granted. The contention was that in holding that the respondent was suspended on full pay and benefits at the time the demand for the return of the motor vehicle in his possession was made, the court a quo ”failed to appreciate the import of the letters written to the respondent by the applicant”. The averment was that as the application for authority to dismiss the respondent from employment was made on 8 April 2002, the court a quo should have found in terms of the letter of 15 January 2002 that “with effect from that date then the respondent’s suspension ceased to be on full pay and benefits”.

In opposing the application, the respondent said the applicant knew through its legal practitioner that the judgment had been given on 28 April 2004. It did not act on the judgment until 14 June 2004. Implicit in the explanation that the delay was due partly to a misconception that the time in which to appeal was reckoned from the day it received a copy of the judgment was the admission that it was told that an appeal had to be noted within fifteen days of the judgment. In other words, the applicant’s officers misconceived what the legal practitioner had told them.

The respondent said the appeal had no good prospects of success. He said as the applicant had suspended him on full pay and other benefits it should have re-suspended him without pay and benefits in terms of s 3(1) of the Regulations before making the application to the labour relations officer for an order or determination terminating his contract of employment if it believed on good cause that he was guilty of misconduct. As that had not been done, his right to the payment of salary and possession of the motor vehicle did not cease at the time the application for an order or determination terminating his contract was made.

The factors to be taken into account in the determination of an application for extension of time in which to appeal and for condonation of non-compliance with the Rules are –

(a) the extent of the delay;

(b) the reasonableness of the explanation for the delay;

(c) whether the litigant himself is responsible for the delay;

(d) the prospects of success on appeal should the application be granted; and

(e) the possible prejudice to the respondent should the application be granted.

See De Kuszaba-Dabrowski v Steel N.O. 1966 RLR 60 (A); Kombayi v Berkhout 1988 (1) ZLR 53 (S).

Although it cannot be said a delay of seventeen days in making an application for condonation is an inordinate delay, the same cannot be said regarding the delay in instituting the appeal. No reason was given for the alleged misconception by the applicant’s officers of the obligation to reckon the date in which to note an appeal from the day the judgment was given. There was no basis on which it could be said the explanation given was reasonable.

The fact that the applicant’s officers did not try to note the appeal within fifteen days of the date of receipt of the copy of the judgment suggests that the alleged misconception of the date from which the time in which to appeal was to be reckoned had no bearing on its failure to comply with the Rules. It is clear from the facts that the applicant’s officers were responsible for the delay, in that they took their time deliberating over the need to appeal against the judgment of the court a quo, oblivious of the fact that the time in which to note the appeal had to be observed.

The appeal has no good prospects of success. Section 3(1)(a) of the Regulations gave the applicant as an employer a power to suspend the respondent without pay and other benefits if it believed on good cause that he was guilty of misconduct. In exercising the power the applicant had at some point in time to tell the respondent that he was being suspended without pay and other benefits with effect from a specific date pending an order or determination by a labour relations officer terminating his contract of employment for misconduct.

The question for determination by the court a quo was whether or not the respondent was suspended without pay and other benefits before the application was made to the labour relations officer for an order terminating his contract of employment. Was there evidence of the applicant telling the respondent that until he was dismissed by order or determination from the labour relations officer he was not to do anything in the discharge of the duties of his office and that he was not going to be paid his salary and other benefits during the period of suspension?

My view of the facts is that there was no evidence of the respondent having been suspended without pay and other benefits in terms of s 3(1) of the Regulations. Ordinarily, such evidence would be found in the form of a letter of suspension. A suspension does not, of course, have to be in writing. No letter was produced by the applicant in terms of which it suspended the respondent without pay and other benefits before the application to the labour relations officer for an order or determination terminating his contract of employment was made. There had to be such a letter or evidence of an oral direction to the respondent if a valid suspension without pay was to be proved, because s 3(1) of the Regulations required that an application for authority to dismiss an employee believed on good cause to be guilty of misconduct had to be made to the labour relations officer forthwith from the date of his suspension.

The letter of 15 January 2002 is, in my view, not a letter of suspension for the purposes of the requirements of s 3(1) of the Regulations. Not only was the date of the suspension mentioned therein too far ahead of the date when the application was made, the suspension itself had been imposed pending the investigation conducted by the external auditors. When the investigation was completed the suspension became inoperative.

In any case, the letter does not tell the respondent that he was being, or had been, suspended without pay and other benefits, but suggested that he had to presume that he was suspended without pay and other benefits from the occurrence of certain events in the future. It would not be in compliance with the requirements of s 3(1) of the Regulations to leave the worker to deduce the fact of being suspended without pay and other benefits from the future behaviour of his employer.

The letter was vague on when the suspension without pay and other benefits would have effect in the future. For example, it was suggested that a decision to apply to the labour relations officer for authority to dismiss the respondent would automatically bring about a suspension without pay and other benefits. In the founding affidavit it was stated, in para 8.4, that:

“The application letter to the Ministry of Labour and Social Welfare was written and delivered on the 8^th of April 2002. With effect from that date then, the respondent’s suspension ceased to be on full pay and benefits.”

If it was intended that the suspension without pay and other benefits would be dependent upon the making of the application for authority to dismiss the respondent, it would not have been the suspension contemplated in s 3(1) of the Regulations. That suspension would have had to precede the making of the application to the labour relations officer for an order or determination terminating the respondent’s contract of employment.

The application is accordingly dismissed with costs.

Scanlen & Holderness, applicant's legal practitioners

Ahmed & Ziyambi, respondent's legal practitioners