Zimnat Life Assurance Limited v George Dikunye

The applicant (Zimnat Life Assurance Limited) sought leave to appeal a decision of the Labour Court on a point of law. The President of the Labour Court refused leave to appeal. The applicant then applied to a Judge of the Supreme Court in Chambers for leave to appeal in terms of s 92F(3) of the Labour Act [Cap 28:01]. The respondent (George Dikunye) opposed the application on the grounds that it was out of time. Leave was refused by the Labour Court on an unclear date, with documents stamped with dates of 25 April 2008 and possibly 11 April 2008, following a hearing on 25 January 2008. The applicant argued it was within the 30-day period allowed by the Labour Court Rules (SI 59 of 2006), while the respondent contended the application was time-barred.

• Whether the application for leave to appeal to the Supreme Court was made within the prescribed time period
• Whether the 30-day period in Rule 36 of the Labour Court Rules (SI 59/2006) or the 10-day period in Rule 30(c) of the Supreme Court Rules applied to applications to a Judge of the Supreme Court after refusal by the Labour Court President
• Whether the court should exercise its discretion to condone the delay in filing the application

1. The application for leave to appeal to the Supreme Court is granted. 2. There will be no order as to costs.

The binding legal principle established is that Rule 30(c) of the Supreme Court Rules applies to applications for leave to appeal to a Judge of the Supreme Court after refusal by the President of the Labour Court under s 92F(3) of the Labour Act. Such applications must be made within 10 days of the refusal of leave to appeal by the Labour Court. The 30-day period in Rule 36 of the Labour Court Rules (SI 59/2006) applies only to applications to the President of the Labour Court under s 92F(2), not to subsequent applications to the Supreme Court.

The court observed that the ground of appeal raised by the applicant on the point of law was of such importance that an opportunity should be allowed for it to be argued on appeal, justifying the exercise of discretion to condone the delay. The court also noted that Rules 4-6 of the Supreme Court (Miscellaneous Appeals and References) Rules refer to appeals but not to applications to a Judge of the Supreme Court where leave has been refused by a lower court, further supporting the application of Rule 30(c). The court commented that given the positions taken by both parties on the procedural dispute, it was not appropriate to award costs to either party.

This case is significant in Zimbabwean labour law and civil procedure as it clarifies the applicable time periods for applications for leave to appeal in the labour law context. It establishes that when leave to appeal is refused by the President of the Labour Court, an application to a Judge of the Supreme Court must be made within 10 days under Rule 30(c) of the Supreme Court Rules, not the 30-day period applicable to applications to the Labour Court President under the Labour Court Rules. The case also demonstrates the court's willingness to exercise its discretion to condone delays where the point of law to be argued on appeal is of sufficient importance, balancing procedural compliance with substantive justice.