Zikalala v Teaching Service Commission and Another (3/09) [2011] SZICA 2 (23 March 2011);

Case name: 
Zikalala v Teaching Service Commission and Another

IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                           CASE NO. 05/09

 

In the matter between

 

ANDILE ZIKALALA                             APPELLANT

 

AND

 

TEACHING SERVICE COMMISSION    RESPONDENT

 

 

CORAM                            RAMODIBEDI JP

                                        MASUKU AJA

                                        MAMBA AJA

 

HEARD            :               8 MARCH 2011

DELIVERED     :               23 MARCH 2011

 

 

 

SUMMARY

 

Labour law – Industrial relations – Flagrant disregard of the Industrial Court of Appeal Rules 1997 – Sub-rules 21(1) and 21(4) thereof – No application for condonation made – Appeal deemed to have been abandoned and accordingly dismissed – Costs de bonis propriis.

 

 

JUDGMENT

 

 

RAMODIBEDI JP

 

 

[1]    It is undoubtedly a matter of grave concern for the administration of justice in this country that for a period of two years the appellant, a teacher by profession, succeeded in stalling disciplinary proceedings launched against him by the respondent for alleged intimate sexual relationship with under age school girls between 2004 and 2007.  He did so, as I observe, by raising all sorts of unmeritorious technical objections to the charge.  When these were dismissed by the Chairman of the disciplinary proceedings, the appellant launched a review application in the court a quo.

 

[2]    In his application the appellant sought an order declaring that Regulation 15(1) of the Teaching Service Regulations does not prohibit sexual relationship with an “adult” student above the age of 16 years.  He also sought several orders in the alternative, mainly seeking to convey that Regulation 15(1)(f) could only be applied after due process of law in the form of criminal proceedings leading up to his conviction.   In due course the court a quo dismissed the appellant’s application on 26 March 2009.  Hence this appeal.

 

[3]    In terms of Rule 21(1) of the Industrial Court of Appeal Rules the appellant was obliged to file the record within one month of the noting of the appeal.  That date fell on 26 April 2009.   However, the appellant has to date failed to file the record almost two years down the line.   Astonishingly, no application for extension of time within which to file the record in terms of Rule 16(1) has been made.  Similarly, no application has been made for condonation in terms of Rule 17.

 

[4]    The appellant’s attorneys are, in my view, evidently guilty of a flagrant disregard of the Rules of Court.  This may indeed be gathered from the fact that on 26 January 2011, the Registrar of this Court wrote to the appellant’s attorneys and advised in the following terms:-

 

                   “B.S. Dlamini Attorneys

                   (Appellant’s Attorneys)

                   c/o Mkhwanazi & Associates

                   Malunge Township

                   Mbabane                                           26th January, 2011

 

                   Dear Sir

 

RE: ANDILE ZIKALALA/TEACHING SERVICE COMMISSION & ANOTHER – INDUSTRIAL COURT OF APPEAL CASE NO.03/2009

 

  1. The above captioned matter is of reference.

 

  1. Please be advised that the above captioned matter has been included in the roll of the 1st sitting of the Industrial Court of Appeal scheduled for March 2011.

 

  1. We have noted however that only a Notice of Appeal was filed by yourself and no court record. Kindly attend to the [filing] of the record if you still wish to pursue the matter, if not kindly file you notice of abandonment.  All records should be filed by no later than the 12th February 2011.

 

  1. Your co-operation will be highly appreciated.

 

 

(signed)

_______________________

B. NGCAMPHALALA

REGISTRAR OF THE INDUSTRIAL COURT”

 

 

          Still, the appellant’s attorneys stonewalled. The conclusion is thus inescapable in these circumstances that they have treated the Rules of this Court with disdain.  

 

[5]    It is of fundamental importance to recognise that the courts in this jurisdiction have repeatedly deprecated flagrant disregard of the Rules of Court. The legal practitioners in this country have, therefore, sufficiently been warned.  If I may say so, I have myself over the years had occasion to add my voice in several of my judgments in the Supreme Court. See Johannes Hlatshwayo v Swaziland Development and Savings Bank, Civil Appeal No. 21/06;  Chief Jubipathi Magagula v Robert Matsebula and Another, Civil Appeal No. 51/08;  Thokozile Dlamini v Chief Mkhumbi Dlamini and Another, Civil Appeal No. 2/2010.  My remarks in the Hlatshwayo case in particular bear repeating, namely:-

 

“[16]   Similarly, it is evident in my view that the attitude evinced by the appellant in the instant case is that the Rules of this Court are unimportant and fall to be disregarded with impurity. It is thus necessary to disabuse litigants of such attitude lest the justice system in this jurisdiction falls into disrepute.  To make matters worse, the appellant has not even bothered to make an application for condonation of all of the breaches of the Rules as fully set out above.   He has thus treated the Court in a cavalier manner.

 

[17]    It requires to be stressed that the whole purpose behind Rule 17 of the Rules of this Court on condonation is to enable the Court to gauge such factors as (1) the degree of delay involved in the matter, (2) the adequacy of the reasons given for the delay, (3) the prospects of success on appeal and (4) the respondent’s interest in the finality of the matter.

 

[18]    …

 

[19]    In my view, the peculiar circumstances of the instant case as fully outlined above cry out for finality of litigation in the interest of justice.   I discern the need to put an end to the whole saga.”

 

[6]    In fairness to him, Mr. Manana, counsel for the appellant, conceded in the forefront of his submissions in these circumstances that the appellants’ attorneys have failed to comply with Rule 21(4) inasmuch as they failed to file the record of proceedings.  He conceded, therefore, that the appeal must be considered to have been abandoned.  In my view, the concession was fairly and properly made in the circumstances.  In this regard Rule 21(4) of the Industrial Court of Appeal Rules provides as follows:-

 

“(4)    Subject to Rule 16(1), if an appellant fails to note an appeal or to submit or resubmit the record for certification within the time provided by this Rule, the appeal shall be deemed to have been abandoned.”

 

[7]    Finally, it is necessary to say something about costs.  In any other ordinary matter, Mr. Manana’s concession as fully set out above might have been sufficient to avoid costs de bonis propriis.  Regrettably, however, this is no ordinary case.  As I have observed in paragraph [4] above the appellants’ attorneys have treated the Rules of this Court with disdain.  There has been a flagrant disregard of the Rules despite several warnings by the courts.  I consider, therefore, that this is a fit case where the appellants’ attorneys should pay costs de bonis propriis.  In fairness to him once again, Mr. Manana readily conceded the point.  In my view, the concession was very fairly and properly made in the circumstances of the case.

 

[8]    In the light of these factors the following order is made:-

 

  1. The appeal is deemed to have been abandoned and is     accordingly dismissed.

(2)    Costs are awarded against the appellant’s attorneys de bonis propriis.

 

 

                                _________________________

                                M.M. RAMODIBEDI

                                JUDGE PRESIDENT

 

 

                                                                               

I agree                             _______________________________   

                                T.S. MASUKU

                                ACTING JUSTICE OF APPEAL

 

 

I agree                             _______________________________

                        M.D. MAMBA

                        ACTING JUSTICE OF APPEAL

 

 

For Appellant           :       Mr. N.M. Manana

 

For Respondent       :       Mr. S.G. Hlophe