Judgment No. SC 26/08

Civil Application No 161/08


ST JOHNS EDUCATIONAL TRUST v DAVID EDWARD GARDNER


SUPREME COURT OF ZIMBABWE
HARARE, SEPTEMBER 19, & OCTOBER 6, 2008


D Mundiya , for the applicant

J B Wood , for the respondent


Before: ZIYAMBI JA: In Chambers in terms of r 5 of the Rules of the Supreme Court.

This is an application for leave to appeal against a decision of the Labour Court in terms of s 92(3) of the Labour Act [Cap 28:01] which provides as follows:

“92F Appeals against decisions of Labour Court.

(1) An appeal on a question of law only shall lie to the Supreme Court from any            decision of the Labour Court.

(2) Any party wishing to appeal from any decision of the Labour Court on a            question of law in terms of subs (1) shall seek from the President who made the       decision leave to appeal that decision.

(3) If the President refuses leave to appeal in terms of subs (2), the party may seek      leave from the Judge of the Supreme Court to appeal.

Leave to appeal was refused by the Labour Court on 4 June 2008 and this application was filed on 30 July 2008.

The respondent contended that the application was out of time and no application for condonation for the delay in filing the application having been made, the application could not be entertained by this Court.

The applicant in reply pointed out that no time limit is set by the Labour Act for making such applications. He referred to Fiona Chikurunhe & Two Hundred and Thirty Four Ors v Zimbabwe Financial Holdings SC 9/08. S92F(3) in its wording provides not for an appeal against the refusal of the President of the Labour Court to grant leave to appeal but for an application to this Court for leave to appeal. No time limit for this application has been set although the Labour Court Rules require the application to that court in terms of subs(2) for leave to appeal be made within 30 days of the judgment sought to be appealed against.

It was submitted on behalf of the respondent that 30 days should be the outer limit for an application to this Court since the Labour Court Rules had set that period as that within which an application should be made to it. To hold otherwise would mean that a litigant could make such an application after 2 years or any number of years and be within his rights. Accordingly it ought to be held that applications of this sort should be made within a reasonable time and the time limit set by the Labour Court rules is reasonable.

Had the matter before me been an appeal from the refusal by the President of the Labour Court to grant leave to appeal I would have been inclined to apply rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 which requires appeals to this Court to be noted within 15 days of the date of the judgment appealed against. But it is quite clear from the wording of the legislation under mention that an application, not an appeal, is to be made to this Court. It may be that an application of this nature could be refused if the delay in filing the application is grossly unreasonable but that is not the case in casu and I would be hesitant to dismiss the application on that ground.

It was further submitted by the respondent that in any event the application should be dismissed on the grounds that there are no prospects of success on appeal.

The facts, as recounted in the judgment of the Labour Court, are that the respondent was employed as a Sports and Physical Education teacher at St Johns College. On 14 September 2006, he was on a sports tour in the United Kingdom when he received a telephone call advising him that he had been suspended from employment with immediate effect, with pay and benefits, on allegations of sexual harassment of some of the boys at the College.

Subsequently, the respondent was served on “28 and 29 September 2006” (sic) with a notice to attend a disciplinary hearing on 4 September 2006. The notice contained a list of the charges he would be facing and the witnesses’ statements were served on the respondent on 3 October 2006.

On 4 September 2006, the respondent presented himself at the hearing with his legal representative who then requested a postponement for a week in order to prepare his defence. The application was opposed by the applicant on the grounds that the matter was urgent as some of the boys would be writing exams within 3 weeks and it was important that the matter be speedily dealt with. It was submitted that in any event the respondent had had enough time to prepare his defence since his legal practitioner had been instructed to represent him 10 days prior to the hearing and the charges had been set out in the notice of hearing. The Disciplinary Committee having listened to argument declined to postpone the matter for a week it being of the opinion that it was in the interests both of the students concerned and the respondent that the matter be determined without delay. The legal practitioner then walked out of the hearing insisting that he needed a week to prepare the defence. The respondent thereupon indicated to the hearing that he did not wish to proceed without representation and the Disciplinary Committee decided to postpone the matter for 2 days to enable him to obtain legal representation. At the resumed hearing the respondent appeared and handed a letter to the Board of Governors. The Board considered the proposals contained in the letter unacceptable and so advised the respondent. It was also advised to the respondent that it was intended to proceed with the disciplinary hearing and that if he were to leave, the hearing would proceed in his absence. The respondent then left and the hearing proceeded. He was found guilty of misconduct and was dismissed.

The respondent took the matter to the Labour Court on review alleging that his suspension was a nullity by virtue of its being verbal and not written as required by s 6(1) of the Labour (National Employment Code of Conduct) Regulations, 2006 and, further, that the failure of the Disciplinary Committee to grant a postponement to enable him to be represented by a legal representative of his choice was a gross irregularity. The Labour Court found in the respondent’s favour and refused an application made by the applicant for leave to appeal to the Supreme Court.


It seems to me that it is in the very least arguable that there are reasonable prospects that this Court sitting as an appeal Court could arrive at a conclusion different from that of the court a quo. I would, therefore, allow the application.

Accordingly it is ordered as follows:

The application for leave to appeal is hereby granted..

The applicant is to file its notice of appeal to this Court within 5 days of the date of this order.

The costs of the application shall be costs in the cause.

Gill, Godlonton & Gerrans , applicants’ legal practitioners
Byron Venturas & Partners , respondent’s legal practitioners