The appellants were employees of Zimbabwe Newspapers (1980) Limited (third respondent). On 16 July 2004, they notified their employer of their intention to embark on a collective job action, which commenced on 2 August 2004. The employer applied to the Minister for a show cause order under section 106 of the Labour Act, which was issued directing immediate cessation of the collective job action. The appellants appealed to the Labour Court against the show cause order but did not cease their strike action. On 18 August 2004, the appeal was dismissed. Despite the dismissal and the show cause order, the appellants continued their collective job action. The employer then summarily dismissed the appellants for engaging in unlawful collective job action and continuing despite the show cause order. On 25 August 2004, the appellants filed an urgent application to the Labour Court for reinstatement, which was dismissed on 31 August 2004. On 19 October 2004, the appellants filed an application to the High Court for review of the Labour Court's proceedings and for a declaratur. The matter was postponed on 29 June 2005, with the court pointing out that papers were not in order, presumably due to the non-availability of the record. On 14 September 2005, the application was heard and dismissed by Gowora J on the ground that no record of the Labour Court proceedings was available.
The appeal was dismissed with costs.
Where a record of proceedings from an inferior court is required for a review application but is not available, the applicant must apply for a mandamus compelling the registrar of the inferior court to prepare and provide the record before seeking to argue the case on the merits. When faced with the absence of a record, the High Court has discretion to postpone the matter, dismiss the application, or order other relief. An appellate court will not interfere with the exercise of such discretion unless it was grossly unreasonable. The obligation to prepare the record of inferior court proceedings under Rule 260(1) lies with the clerk/registrar of the inferior court, but applicants have a responsibility to ensure compliance before proceeding to argument. A dismissal for procedural non-compliance (failure to provide the record) does not necessarily bar a fresh application, subject to compliance with other procedural requirements including time limits.
The Court observed that initiating an enquiry for the sake of an enquiry is an absurdity, and there must be a genuine dispute before an enquiry is warranted. In this case, the Court noted that the appellants did not dispute that they participated in the unlawful collective job action after the show cause order was issued and confirmed by the Labour Court, questioning what such an enquiry would seek to determine. The Court also noted that it was not suggesting that appellants were absolved from complying with time requirements for review applications should they choose to resubmit their application, emphasizing that condonation of late filing is entirely within the purview of the High Court. The Court clarified the distinction between relief seeking a declaratur (which appeared in paragraphs 1-2 of the draft order, which were abandoned) and relief seeking review (paragraphs 3-5).
This case establishes important principles regarding procedural requirements in review applications in South African and Zimbabwean law. It clarifies the obligations of parties when the record of inferior court proceedings is not available, emphasizing that applicants must take proactive steps to obtain the record through mandamus applications before proceeding to argue the merits. The case also demonstrates the court's discretion in dealing with procedural non-compliance and the circumstances under which appellate courts will interfere with such discretionary decisions. It reinforces that appellate courts will only interfere with a lower court's exercise of discretion if it was grossly unreasonable. The case also addresses the relationship between procedural dismissals and the ability to reinstitute proceedings, preserving the right to approach the court again with proper compliance.