Tendai Bonde v National Foods Limited & 2 Ors

### Preamble
Judgment No. SC 91/22
1
Chamber Application No. SCB 51/22
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REPORTABLE (79)

TENDAI BONDE

v

(1)     NATIONAL     FOODS     LIMITED     (2) LOVEJOY     NYANDORO [as Chairman of Appeals Committee]     (3)      CHIPO      NHETA [as Chairman of Works Council]

SUPREME COURT OF ZIMBABWE

HARARE: 22 JUNE 2022 & 15 AUGUST 2022

The applicant in person

A. K. Maguchu, for the respondents

IN CHAMBERS VIRTUALLY

MAKONI JA:	This is a chamber application made in terms of s 92F (3) of the Labour Act [Chapter 28:01] (the Labour Act) “as read with r 60 (2) and r 61” of the Supreme Court Rules, 2018’ (the Rules). The applicant seeks condonation and extension of time within which to seek leave to appeal against the whole decision of the Labour Court.

The applicant filed a series of unsuccessful applications in this Court seeking the exact same relief. The instant application is his seventh attempt. I have written this judgment in the hope that it will assist the applicant to understand why all his applications have been still born. The application is opposed.

THE FACTS

The brief background of this application may be summarized as follows: The applicant was employed by the respondent as a laboratory technician quality control analyst at its Bulawayo depot. He was charged with misconduct.  It was alleged that he was found in possession of unauthorized email communication which was between Group Executives to the first respondent. He was also said to have shared the information contained in the email correspondence with “external parties” without the consent of the company and in so doing, breached the Company’s Information Policy. A disciplinary committee was set up by the first respondent to adjudge on the applicant’s conduct. The disciplinary hearing was postponed on six occasions at the instance of the applicant. On 31 July 2018, the Disciplinary Committee found the applicant guilty of misconduct. The applicant was in default when such a finding was made. Subsequently, he was dismissed from employment.

The applicant proceeded to file an appeal to the first respondent’s Appeals Committee on 5 September 2018. The Appeals Committee dismissed the appeal in the applicant’s absence and upheld the decision of the Disciplinary Committee. Aggrieved by the decision of the Appeals Committee, the applicant appealed to the Labour Court under LC/B/37/2019 contending that the hearing committee had erred by not making a finding that he was wrongfully charged and dismissed. The applicant further argued that the committee had erred in finding that he was in possession of classified documents. He contended that the documents upon which the charge was based ‘had been inserted’ under unclear circumstances into his computer following a breach of his password.

The respondent raised a preliminary point to the effect that the appeal was improperly before the court for the reason that the applicant was absent in both lower tribunals - which tribunals had issued default judgments against him.  It contended that such judgments could not be appealed against. The court a quo, per MURASI J, upheld the point in limine. The matter was struck off the roll.

On 23 July 2019, the applicant wrote a letter to the Appeals Committee seeking a rescission of the default judgment entered against him. The Appeals Committee is said to have refused to hear the application on the basis that there was no provision in the Code of Conduct in terms of which default judgment could be rescinded.

Thereafter, the applicant approached the Labour Court - yet again - this time with an application for condonation for the late filing of an application for review. The applicant sought the review of the Appeals Committee’s refusal to hear his application for rescission of the default judgment entered against him by the Disciplinary Committee. The application was dismissed by the Court on 13 March 2020, per MAXWELL J, for lack of merit. The court ruled that the applicant was out of time as it took him thirteen (13) months to bring his application before the court. Further, the court found that no reasonable explanation had been tendered for the delay. It also found that the applicant’s case carried no prospects of success on review. The application was dismissed on the basis outlined above.

Following the dismissal of his application, the applicant sought leave to appeal to this Court from the court a quo. He averred that the court a quo, per MAXWELL J, had made substantial errors and wrongly exercised its discretion. The application was dismissed on 17 July 2020 for the reason that the applicant’s intended grounds of appeal offended the rules of the court and further that there were no prospects of success on appeal. In essence, the court a quo ruled that the intended appeal was against the court’s exercise of discretion, and not on questions of law as required by the rules.

Aggrieved, the applicant, as alluded to above, approached this Court on numerous occasions, seeking leave to appeal. Many of these cases have either been dismissed or struck off the roll for want of compliance with the rules. To wit, the applicant launched an application for leave to appeal which was heard before GUVAVA JA under SCB 11/21 on 22 March 2022. It was struck off the roll firstly, because the relief sought was incompetent and secondly, because he failed to raise questions of law in his grounds of appeal as required by s 92F of the Labour Court Act. The applicant then made other unsuccessful applications before KUDYA JA, UCHENA JA and MWAYERA JA. The applications were largely struck off the roll because the applicant kept making the same errors.

SUBMISSIONS BY THE PARTIES

The first respondent raised a preliminary point in its notice of opposition. It contends that the application before this Court is fatally defective on the basis that the rules upon which this application is predicated, that is, rr 60 (2) and 61 address a litigant who has acquired the right to appeal but has failed to exercise that right on time. To that end, so the argument went, as the applicant did not fall into that category of litigants, he has no right to appeal at this juncture. In its heads of argument, the first respondent further submits that, “Her ladyship MWAYERA JA almost lost her breath in explaining this to the applicant in the last proceedings, yet the same error has been repeated for the umpteenth time.”

In response, the applicant in his answering affidavit submitted that his application was not defective. His interpretation of r 60 (2) was that if an application for leave to appeal is denied by the Judge of the Labour Court, the affected party must seek leave from a Judge of the Supreme Court within ten days. He submitted that his application for leave to appeal before GUVAVA JA was struck off the roll and that meant that nothing was pending before this Court and thus he had to “start afresh”.

PROCEEDINGS IN CHAMBERS

At the onset of this application the applicant sought my recusal on the basis that I had previously dealt with five of his matters and found against him in all the matters.  Two were appeals and the others were chamber applications. I dismissed the application for my recusal and gave my reasons ex-tempore.

The applicant raised several points in limine in his answering affidavit. The first preliminary point is to the effect that the second and third respondents did not oppose the application. He averred that the second and third respondents have a direct and substantial interest in the application. According to him, they are in default and he prays for a default judgment. The second is that the opposing affidavit filed by the first respondent is vague and embarrassing because the first respondent did not make any effort to deny the issues he raised in his founding affidavit. Lastly, that the first respondent’s notice of opposition was defective and improper because it was served on him out of time.

In response to the first preliminary point, the first respondent submitted in its heads of argument that the second and third respondents were adjudicators in the dispute between the applicant and the first respondent, thus, they have no fight in the present matter and no order can be made against them. He added that this position was explained to the applicant on several occasions but he still insists on it. Addressing the second point in limine, the first respondent submitted that the applicant is inviting the first respondent and the court to “dance in mud” by making reference to irrelevant materials. The first respondent infers that its notice of opposition is proper and only addresses relevant issues. Regarding the last point in limine, it was submitted that the first respondent’s notice of opposition was one of the first, on the part of the Registrar, to be filed through the e- filing system. It encountered challenges as the chamber application had been filed before the e-system was in place. It finally managed to file its papers a day out of time.

THE LAW AND THE FACTS

Both parties raised points in limine as outlined above.  The points in limine raised by the applicant had to be determined first as they raised the question of the propriety of the first respondent’s notice of opposition. All the points were found to have no merit and were dismissed. Reasons were furnished ex-tempore.

Next to be considered was the point in limine raised by the respondent. The issue for determination is whether or not the application in casu is properly before me. The application before me is an application for condonation and extension of time in which to seek leave to appeal. It has been made in terms of s 92F (3) of the Labour Court Act in conjunction with rr 60 (2) and 61 of the Rules.

Section 92 F (3) of the Labour Act provides that a person who wishes to appeal to the Supreme Court is required to seek leave in the Labour Court, and if such leave is denied, leave must be sought in the Supreme Court. The point was succinctly put by KUDYA AJA (as he then was) in the following remarks in Zimbabwe Anti-Corruption Commission v Gibson Mangwiro & Anor SC 11/22 at p 8:

“In terms of s 92 F (1), an appeal from the Labour Court lies to the Supreme Court on a point of law. Section 92 F (2) requires the appellant to seek leave to appeal from the Labour Court. And s 92 F (3) prescribes that the prospective appellant who is denied such leave approaches a judge of the Supreme Court.  The application before a judge of this Court is not an appeal against the refusal of the Labour Court. It is a legislative device that provides access to the Supreme Court to an aggrieved litigant. It allows a higher judicial officer to reconsider the grievance with an unjaundiced eye.”

Rules 60 (2) and 61 of the Supreme Court Rules provide as follows respectively:

“60. (1)......

(2) An appeal from a decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01] shall be delivered, and filed with a registrar, within 15 days from the grant of leave to appeal by the Labour Court or, where such leave is refused, within 15 days from the grant of leave by a judge:

Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within ten days of the refusal to grant leave.

Applications for extension of time to appeal

61.	Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by rule 60 or by the enactment concerned, for instituting an appeal.”

Section 60 (2) sets the timelines within which an appeal, brought in terms of s 92F, is to be filed with the Supreme Court. Such an appeal should be filed within fifteen (15) days of grant of leave by the Labour Court or where such leave is refused within fifteen (15) days of grant of leave by a judge of this court.

Section 61 provides for applications for condonation and extension of time in instances where a litigant who intends to appeal, has breached the prescribed time limits. The essence of these provisions is that they accord to a litigant, who would have acquired the right to appeal by obtaining the necessary leave, the right to file his or her appeal.

In casu, the applicant unsuccessfully sought leave to appeal in the Labour Court. Leave was declined by the court a quo on 17 July 2020. He therefore ought to have sought leave in this Court on or by 29 of July 2020. The applicant is out of time. He, of necessity, needs to make an application for condonation for the late noting of an application for leave to appeal. There is no shortcut because, “The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit. It should, in this case, have been deployed by refusing leave to appeal.” (see Dexgroup (Pty) Ltd v Trustco Group 2013 (6) SA 520 (SCA) para 24.

From the above analysis, the first respondent is correct, in its submission that the applicant relied on the wrong rule. Rule 61 provides for condonation of the late noting of an appeal. It only kicks in when a litigant would have obtained leave before a judge of the Labour court, and if refused, a judge of this Court. The litigant would start by proving that he obtained the necessary leave but failed to file his appeal within the stipulated fifteen (15) days from the date of the grant of leave.

It is against this backdrop that the applicant ought to have made an application for condonation for the late filing of an application for leave to appeal, in terms of the appropriate rule, and not an application for condonation for the late filing of an appeal. The application before me has evidently been made in terms of the wrong rule and is therefore not properly before me.

The first respondent in its heads of argument submits that this application must be dismissed as opposed to being struck off the roll because the applicant has been in the Court’s corridors with multiple defective applications since time immemorial. It places reliance on the case of John v Delta Beverages Limited SC-40-17 wherein this Court frowned upon the filing of multiple defective applications. It was held at p 7 that:

“There comes a time when the court, in the exercise of its discretion, must decide that there is a limit to which such indulgences can be granted to an applicant and such applications will be dismissed where they fail to comply with the rules of the court. Striking the matter off from the roll does not finalize the matter but merely means the matter will be filed again thus clogging the court system with recycled cases. In my view, there is a limit to which the court will indulge a litigant, as there must be finality in litigation.”

Similarly in Ahmed v Docking Station Safaris Private t/a CC Sales SC70/18 it was held that:

“In view of these irregularities I found it proper to dismiss the application instead of striking it off the roll. In Mudyavanhu v Saruchera SC 75/15 GWAUNZA JA (as she then was) stated that;

‘It is noted that a number of matters have been struck off the roll by this Court on the ground that the relief sought was not exact in nature and that as a result the related notice of appeal was incurably defective. See Ndlovu & Anor v Ndlovu & Anor (supra). However, in this case, the court found that the appeal was not only incurably defective but wrong and bad in law. The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court.’ (my emphasis).

The grave irregularities that accompany this application warrant a dismissal. The applicant`s draft order is fatally defective and the application as a whole is wrong and bad in law. This application can only be dismissed.”

This Court has inherent power to prevent abuse of its process by frivolous and vexatious applications. I stand guided by the reasoning in Chirambwe v The President of the Republic of Zimbabwe & Ors CCZ 4/21 at pp 33 – 34 para 73:

“.... this Court has the inherent jurisdiction to summarily disallow proceedings that amount to an abuse of the process of the court. See Ushewokunze Housing Co-operative Society Limited v Crest Breeders International (Private) Limited HH 529/16; Rogers v Rogers & Another 2008(1) ZLR 330. This is usually the case where the proceedings are not bona fide, but frivolous and absurd.

The proceedings must be obviously unsustainable or manifestly groundless, or utterly hopeless and without foundation. Case law authority suggests that to bring an application within this description, there should be grounds upon which the court can formulate an opinion that the application is clearly so groundless that no reasonable person can possibly expect to obtain relief from it.”

The thread that runs through the above decided cases is that it is within this court’s discretion to decide whether an application, such as the one before me, should be dismissed. The application is clearly defective. To make matters worse, the applicant has been advised of the errors in his previous applications. However, he keeps filing wrong and defective ones. Despite the above, I have decided to exercise my discretion in favour of the applicant for the sole reason that it has not been shown that the applicant was warned of such possible consequences in the previous applications. If that had been done, I would have been well minded to dismiss the application for the reasons advanced by the respondent. The applicant is now aware that, the court, in the exercise of its discretion, can dismiss such defective applications as the one in casu. I will instead strike the matter off the roll.

COSTS

The respondents applied for costs on a punitive scale. These are warranted. The applicant has been filing defective applications in this Court despite the guidance accorded to him in a plethora of defective applications filed before this Court. Although he is a self-actor, he is a regular litigant in our courts who should by now be well acquainted with the rules. The respondents have been unnecessarily put out of pocket in responding to this application. The first respondent further submitted that despite orders of costs being made in their favour, they have not been able to recover same because the applicant has no movable property capable of attachment. In their own words “Litigation has simply become the applicant’s favourite pass time at first respondent’s cost”.

In Tendai Bonde v National Food Limited SC 57/20 at p 11 para 28, it was held that:

“In the circumstances, whilst the courts are generally reluctant to mulct self-actors by ordering them to pay costs, and in particular costs on the higher scale, it seems to me that in a case, such as the present, where the self-actor, as applicant, abuses the rules of this Court in order to achieve his own purposes, an order that the self actor pays costs on the higher scale is warranted.”

I associate myself with the above finding. The applicant ought to pay costs on a higher scale.

Accordingly I make the following order:

“The application is struck off the roll with costs on the legal practitioner and client scale.”

Maguchu  & Muchada Business Attorneys, 1st respondent’s legal practitioners