Vengesai Chirasha v National Foods Limited

### Preamble
Judgment No. SC 10/21
Civil Appeal No. 1
SCB 65/20
---------


NOT REPORTABLE /NOT DISTRIBUTABLE

VENGESAI CHIRASHA

v

NATIONAL FOODS LIMITED

SUPREME COURT OF ZIMBABWE

GUVAVA JA

BULAWAYO, OCTOBER 15, 2020 & MARCH 22, 2021

Applicant in person

S. Chamunorwa, for the respondent

IN CHAMBERS

GUVAVA JA:	This is an application for leave to appeal in terms of r 60 of the Supreme Court Rules 2018. The applicant was denied leave to appeal by the Labour Court on 3 July 2020. Aggrieved by the denial for leave he has applied to this Court.

BACKGROUND FACTS

The brief background of this application may be summarised as follows:

The applicant was employed by the respondent as a stock control clerk. In September 2004 the respondent had entered into a Works Council Agreement with its employees regarding transfer expenses. In 2009, the applicant was transferred to Victoria Falls to one of the respondent’s depots. Whilst there, the applicant raised a complaint with regards to his transfer expenses which were not met by the respondent.

The applicant took up the matter with the respondent’s Human Resources Department and was later paid the amount of US$359.00 in April 2010. The applicant was aggrieved by the amount he was paid and approached a Labour Officer with a complaint.

The applicant averred that no breakdown of the money he received had been given by the respondent. He believed that he was not paid in accordance with the 2004 Works Council Agreement. The matter was not settled at conciliation and it was referred to compulsory arbitration. The arbitrator found that the respondent was bound by the 2004 Works Council Agreement. The arbitrator further found that the applicant failed to produce receipts to support the claims he made against the respondent for transport costs, hotel accommodation and relocation allowances. The arbitrator dismissed the claim. Applicant was aggrieved and instituted proceedings to have the arbitral award set aside.

The applicant approached the Labour Court before Nare J with an application for review coupled with an appeal. The appeal was dismissed for lack of merit. The application for review was also dismissed on the basis that the court had no jurisdiction to review the arbitrator’s decision. The applicant was aggrieved and appealed before this Court.

On 13 March 2018 the Supreme Court upheld the applicant’s appeal in part and made the following order:

The appeal succeeds in part.

The appeal against his dismissal from employment is dismissed with the appellant bearing the costs thereof on the ordinary scale.

The appeal pertaining to the arbitrator’s award is allowed with costs on the ordinary scale to be borne by the respondent.

The matter relating to the challenge of the arbitrator’s award is remitted to the Labour Court for consideration on the merits before a different judge. This judgment and the record are referred to the Judicial Service Commission for it to investigate and take appropriate action on matters raised herein.

Following the judgment of the Supreme Court, the applicant made an application for review before the Labour Court on 22 March 2019 before Moya-Matshanga and Kabasa JJ. The application was struck off the roll on the basis that it was fatally defective as the applicant had used an incorrect form and that the application for review had been made out of time with no condonation being sought.

The applicant then filed a chamber application for reinstatement of the application for review. The application was also struck off the roll as the applicant had used the wrong procedure by seeking reinstatement of a fatally defective application.

The applicant proceeded to make an application for condonation and extension of time within which to make an application for review before Maxwell J.  The court found that the applicant failed to give a reasonable explanation for his delay in making a valid application for review and that he lacked prospects of success on review. The court further held that the applicant ought to have attached receipts in making a claim against the respondent. As such the court found that the applicant failed to show that he had prospects of success and dismissed the application. The applicant sought leave to appeal against the dismissal of his application for condonation, which application was dismissed by the court a quo.

APPLICANT’S SUBMISSIONS

At the hearing, the applicant sought an amendment of his notice of appeal. Counsel for the respondent was unopposed to the amendment. The amendment was thus granted by consent.

Applicant raised two preliminary points. The first point being that the respondent was opposing the application with dirty hands as there was an extant order of the Supreme Court which remitted the issue of quantification of his claim against the respondent to the court a quo for a determination on the merits. Applicant thus argued that on the basis of that order alone his application had to be granted.

The second point raised was to the effect that the respondent’s opposing affidavit was forged as the last page of the affidavit, bearing the signature of the deponent, had a different font to that of the whole affidavit. With that the applicant argued that the opposing affidavit was fatally defective. Also, the applicant challenged the authenticity of the opposing affidavit on the basis that the deponent was making it based on hearsay evidence.

On the merits, the applicant submitted that the court a quo misdirected itself when it arrived at the decision that the transfer and travel policy under the 2004 Works Council Agreement required that he produce receipts when claiming for travel, hotel accommodation and transfer allowances. Applicant further argued that the court erred when it dealt with technical issues when the Supreme Court had already remitted the matter specifically for consideration on the merits.

RESPONDENT’S SUBMISSISSIONS

Counsel for the respondent Mr Chamunorwa, raised a preliminary objection to the effect that despite the amendment sought by the appellant to his notice of appeal the relief he sought under pp 1 and 2 was defective. Counsel argued that the applicant could not seek to have the Labour Court quantify his claims as the court had not yet reached that stage due to the fact that the application for review on the merits had not been dealt with. Counsel submitted that on this basis alone the application was defective and prayed that it be struck off the roll with costs.

Mr Chamunorwa, opposed the preliminary points raised by the applicant. With regards to the first point, counsel argued that the applicant could not raise the principle of dirty hands before this Court as the principle was never raised before the court a quo. Counsel further argued that the court a quo had jurisdiction to deal with all the issues placed before it despite the order of the Supreme Court.

On the second point counsel argued that the respondent was properly before the court as the opposing affidavit was timeously filed. Counsel explained that the difference on the font size was due to the fact that the deponent of the affidavit who is based in Harare, was emailed the papers, which papers were then commissioned and scanned and returned to Bulawayo as scanned copies which were then attached to clear pages of the opposing affidavit. With that counsel argued that the affidavit was not defective as it was properly drafted and filed.

With regards to the merits, counsel for the respondent argued that the applicant failed to satisfy the requirements for an application for condonation and extension of time within which to file an application for review. It was counsel’s argument that the applicant failed to give a reasonable explanation for his delay in making a proper application for review and that he had no prospects of success on review. It was thus counsel’s argument that the court a quo did not err in dismissing the applicant’s application for condonation and extension of time file to an application for review.

DETERMINATION OF PRELIMINARY POINTS RAISED

Both parties raised preliminary points. I propose to deal with the applicant’s preliminary objections first.

The applicant raised the first preliminary to the effect that the respondent was opposing the application with dirty hands in light of the fact that the Supreme Court judgment ordered for a remittal of the matter on quantification. The respondent opposed the objection on the basis that the court a quo has jurisdiction to deal with any issues which arose between the parties in relation to the Supreme Court order.

I find merit in the respondent’s argument. What was before the court a quo after a chain of court applications, was an application for condonation and extension of time to file an application for review. The applicant had his application for review struck off the roll on 22 March 2019 before Moya Matshanga and Kabasa JJ on the basis that it was fatally defective and had been made out of time. Having been out of time and having failed to make a proper application for review the only recourse the applicant had was to obtain condonation and extension of time before making a fresh application for review.

Once the applicant reached the point of seeking condonation and extension of time, the operation of the Supreme Court order was suspended. The applicant cannot raise the issue of dirty hands against the respondent as he himself has no right of audience before the court a quo without being condoned first, to have the matter relating to the challenge of the arbitrator’s award dealt with on the merits. The order of the Supreme Court can only fully operate once the applicant is condoned by this Court and in making a fresh application for review. The applicant’s preliminary point is thus devoid of merit.

The second preliminary objection is to the effect that the respondent’s opposing affidavit is defective as it has pages with different fonts which suggest that it was forged and ought to be struck out from the record. Counsel for the respondent opposed the objection and explained the reason for the differences. The applicant further challenged the opposing affidavit on the basis that it was made on hearsay evidence by Leigh Howes who did not have full knowledge of the matter.

Rule 39 of the Supreme Court Rules, 2018 (‘the Rules’) provides for the procedure under which applications are made before this Court. In terms of r 39 (3) a respondent has a right to oppose to any application.  Rule 39 (3) provides as follows:

“The respondent shall have the right to file opposing affidavits within five days of receipt of the application in terms of this rule and, thereafter, the applicant shall have the right of filing answering affidavits within a further period of five days calculated from the date of receipt of the respondent's opposing affidavits.”

In casu, the respondent timeously filed its opposing affidavit within 3 days. The affidavit was deposed to by the respondent’s Group Legal Counsel Leigh Howes. The deponent in making the application stated that:

“I have been involved in the various matters brought by Mr Vengesai Chirasha against the Respondent and as such I am fully acquainted with the facts of this matter.”

Leigh Howes deposed to the affidavit on the basis that she had personal knowledge of the matter.

As a general rule, subject to the Civil Evidence Act [Chapter 8:10] hearsay evidence is inadmissible in affidavits. The learned authors Herbstein and Van Winsen in Civil Practice of the High Courts of South Africa 5 ed, Vol. 1 of p 444 opine that where a deponent to an affidavit includes information that he does not have first-hand knowledge of, a verifying affidavit by a person deposing to the facts should be filed.

A wholesome reading of the respondent’s opposing affidavit shows that the deponent has first-hand knowledge of the matter. I find no merit in the applicant’s objection. The opposing affidavit was filed timeously and it advances the respondent’s case. The difference of the font used in the affidavit and the signed last page is clear. However, the explanation given by counsel for the respondent for the difference is reasonable and believable. The applicant’s preliminary objections are devoid of merit and accordingly dismissed.

With regards to the respondent’s point in limine, it was submitted by counsel for the respondent that the appellant’s notice of appeal is fatally defective as it has an incompetent relief. Applicant opposed the point raised by the respondent and maintained that his notice of appeal was proper as is.

The applicant’s amended notice of appeal has the following relief sought on appeal:

“WHEREFORE the appellant prays for an order that:

The appeal is allowed with costs.

The judgment of the court a quo is set aside and is substituted with the following order:

“The application for condonation and extension of   time within which to file an application for review is allowed with costs”

AND IT IS ORDERED THAT:

PRAYER (1)

The matter is remitted to the Labour Court to exercise its

equitable jurisdiction in quantification.

PRAYER (2)

The Supreme Court make such order as appear to it necessary

in the justice of the case.” (sic)

A reading of the applicant’s relief sought shows that he seeks to have this Court siting as an appeal court, to grant him condonation and extension of time within which to file his review application. However, the applicant goes on to seek a remittal of the matter to the court a quo for quantification and in the alternative that the Supreme Court make an order which appears necessary in the justice of the case.

Rule 59 (3) of the Supreme Court Rules provides for the standard form which a notice of appeal under Miscellaneous Appeals should have. Rule 59 (3) (4) (d) provides that a notice of appeal must show the exact nature of the relief sought. In Sambaza v AL Shams Global BVI Limited SC 3/18 the court stated the following:

“The exact nature of the relief sought referred to in r 29 (1) (e) refers to the type or characteristics of the relief sought. This means the relief sought must be of the type relevant to the dispute between the parties. Therefore, the nature of the relief sought was wrongly framed and is incompetent as it refers to allowing an appeal and setting aside of an order, remedies which could not have been granted by the court a quo in a court application.”

Also, in Mudyavanhu v Saruchera and Others SC 75/17 the court noted that it is a mandatory provision of the rules of the court that the relief sought must be exact. It was noted as follows:

“Rule 29 (1) (e) is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.” See also Ndlovu v Ndlovu and Another SC 133/02

The meaning of the phrase ‘exact nature of the relief sought’ thus means that an appellant must inform the court of the relief he/she wants. The Supreme Court is there to question the correctness or otherwise of a decision of the lower court. In doing so the court is guided by the relief sought by the appellant. The need for the relief sought on appeal to be exact cannot be over emphasised.

The applicant in casu, gives two prayers on appeal which are both incompetent. Firstly, the prayer that this Court remits the matter to the court a quo for quantification is unattainable. If the Supreme Court finds merit in the applicant’s appeal it will set aside the judgment of the court a quo, substitute the judgment and allow the application for condonation and extension of time within which to file an application for review. Armed with that order, the applicant will have right of audience before the court a quo to make a fresh application for review within the time frames as provided for in the rules of the Labour Court. The first prayer is therefore incompetent as there can be no remittal in this matter.

The applicant’s alternative prayer is for the Supreme Court to make an order “as appear (sic) to it necessary in the justice of the case”.  The second prayer clearly fails to meet the threshold of the mandatory rule which provides that the exact nature of the relief sought must be given. It cannot be for this Court to draft a relief for the applicant, rather the applicant should inform the court of the redress he seeks.

In Matanhire v BP Shell Marketing SC 113/04 this Court refused to amend a notice of appeal which was fatally defective and at p 1 of the cyclostyled judgment, the court stated the importance of complying with the Rules of court as follows:

“It is not usual to write a judgment on a matter that has been struck off the roll – see S v Ncube 1990 (2) ZLR 303 S). This judgment has been written for purposes of drawing the attention of legal practitioners to the fact that all the matters required by the Rules of Court to be stated in a valid notice of appeal are of equal importance so that failure to state one of them renders the notice of appeal invalid.”

The relief sought renders the notice of appeal fatally defective. The present application is thus defective as I cannot assess it on the basis of a defective notice of appeal. As such this application must be struck off the roll as it is improperly before me.

DISPOSITION

I find merit in the respondent’s preliminary point. The applicant’s notice of appeal is fatally defective. It is also necessary to point out that the applicant’s grounds of appeal are not clear and concise as mandated by the rules of this Court. The applicant must endeavour to find assistance in drafting his notice of appeal before approaching the court again.

In the result, the matter is struck off the roll with costs.

Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners