University of Zimbabwe v Kwanele N. Jirira and Louis Masuko

The applicant, University of Zimbabwe, employed both respondents as research fellows at its Institute of Development Studies. The respondents were dismissed by a disciplinary tribunal for allegedly refusing to obey a lawful order to be redeployed from the Institute of Development Studies offices to the University campus. The respondents approached a Labour Officer complaining of unfair dismissal. An arbitrator ruled in their favour and awarded reinstatement or alternatively damages. The applicant appealed to the Labour Court, which dismissed the appeal. The applicant was granted leave to appeal to the Supreme Court but did not reinstate the respondents as ordered. The respondents then sought quantification of damages, which were assessed at US$156,852.13 and US$134,362.00 respectively. The applicant appealed the quantification award to the Labour Court. On 31 October 2012, CHIVIZHE J dismissed the applicant's appeal for failure to file heads of argument timeously (in terms of Rule 19(3)(a)). The applicant did not seek rescission of this order but instead, after a delay of approximately two and a half years, approached the Supreme Court on 15 March 2015 seeking leave to appeal.

• Whether the applicant's grounds of appeal raised a point of law as required by section 92F of the Labour Act
• Whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order without giving reasons
• Whether the applicant should have applied for rescission of judgment in terms of section 92C of the Labour Act instead of seeking leave to appeal
• Whether the inordinate delay of two and a half years in approaching the Supreme Court was justified
• Whether the applicant had exhausted its domestic remedies before approaching the Supreme Court

The application for leave to appeal was dismissed with costs.

Where a party's appeal has been dismissed by the Labour Court for failure to comply with procedural requirements (such as filing heads of argument timeously), the proper remedy is to apply for rescission of the order in terms of section 92C of the Labour Act, together with an application for condonation and extension of time in terms of Rule 26, within the prescribed time limit of 30 days under Rule 33. A party must exhaust domestic remedies in the court a quo before approaching the Supreme Court for relief. An inordinate and unexplained delay in seeking relief demonstrates a lack of serious intention to prosecute an appeal and will result in dismissal of the application.

When a judge of the Supreme Court sits in chambers to decide an application for leave to appeal after the Labour Court has refused leave, the judge does not treat the application as an appeal against the refusal but rather decides the matter on the merits as if it were a fresh application. While criticisms of the court a quo may be considered, they are not overriding considerations because the Supreme Court judge makes an independent fresh determination based on the papers and arguments presented. The court observed that the application appeared to have been lodged as an afterthought to circumvent the court a quo and obstruct pending execution proceedings.

This case illustrates important principles in Zimbabwean labour law procedure regarding: (1) the proper procedure to be followed when an appeal is dismissed for non-compliance with rules (rescission rather than appeal); (2) the requirement to exhaust domestic remedies before approaching the Supreme Court; (3) the importance of timeously seeking relief from the court a quo; and (4) the need for reasonable explanations when applications are brought after inordinate delays. It reinforces that parties cannot circumvent lower court procedures by approaching the Supreme Court directly, particularly when they have failed to comply with procedural requirements and have not sought appropriate remedies within prescribed time limits.