This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the ...
This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.
At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the application with costs. The applicant has requested for the written reasons for the decision. These are they.
THE FACTS
The applicant was formerly employed by the respondent as a lecturer. In 2018, he was charged with four counts of misconduct. The disciplinary proceedings were conducted in terms of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006.
He was duly convicted of two of the counts and acquitted of the other two counts by an internal Disciplinary Authority.
Dissatisfied with the internal Disciplinary Authority's determination on the two counts upon which he was convicted and dismissed from employment, he appealed to an internal Appeals Committee which upheld the Disciplinary Authority's decision.
Further dissatisfied by the decision of the Appeals Committee, he referred the matter to a Labour Officer and eventually to the Labour Court.
The Labour Court's decision was not to his satisfaction, hence, he appealed to this Court in SC236/20.
On 13 November 2020, this Court issued an order, by consent, setting aside the proceedings that had been undertaken before the Labour Officer and the Labour Court as such proceedings were held to have been nullities.
The applicant thereafter filed a new appeal to the Labour Court against the determination of the internal Disciplinary Authority and the upholding of that decision by the internal Appeals Committee.
On 8 February 2022, the Labour Court dismissed the applicant's appeal in an ex tempore judgement. Upon his request, written reasons for judgment were provided on 11 March 2022.
The applicant belatedly sought leave to appeal, but, that initial application was struck off the roll as he was out of time and had not sought condonation for the late filing of such an application.
The applicant subsequently filed an application for condonation for failure to seek leave within the period prescribed by the Rules and for leave to appeal in the Labour Court on 23 June 2022.
That application was dismissed by the Labour Court on 6 June 2023.
In terms of the proviso to Rule 60(2) of the Supreme Court Rules 2018, the applicant had ten (10) days within which to approach this Court for leave to appeal against the Labour Court's judgment from the date of the dismissal of his application by the Labour Court.
The applicant's initial application, in SC378/23, was fatally defective and was struck off the roll on 27 June 2023. The current application was filed on 8 August 2023 which was way outside the period by which such an application ought to have been filed.
It is in view of this that the applicant seeks condonation for failure to file the application for leave to appeal within the prescribed period and for leave to appeal.
The application is opposed.
In its opposition, the respondent contended, inter alia, that, the delay is inordinate and that there is no reasonable explanation for the delay. It also contended, that, there were no prospects of success on appeal. It thus prayed for the dismissal of the application.
THE LAW
It is trite that in an application for condonation for non-compliance with the Rules, an applicant is obligated to demonstrate to the court that he or she has good cause for the grant of the relief. The applicant is required to, inter alia, provide a reasonable explanation for the delay and for non-compliance with the Rules and also to show that there are good prospects of success on appeal.
In Forestry Commission v Moyo 1997 (1) ZLR 254 (S) GUBBAY CJ set out factors to be considered in such an application as including:
“(a) That the delay involved was not inordinate, having regard to the circumstances of the case;
(b) That there is a reasonable explanation for the delay;
(c) That the prospects of success, should the application be granted, are good; and
(d) The possible prejudice to the other party should the application be granted.”
See also Machaya v Munyambi SC04-05; Easter Mzite v Damafalls Investments (Pvt) Ltd SC21-18.
These factors are not individually decisive on whether the application for condonation for non-compliance with the Rules is granted. They are considered cumulatively.
In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:
“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”
See also: Director of Civil Aviation v Hall 1990 (2) ZLR 354 (SC)…,.
ISSUES FOR DETERMINATION
1. Extent of the delay and whether the explanation for such delay is reasonable.
2. Whether there are good prospects of success in the envisaged appeal.
3. Whether there is prejudice to be suffered by the other party if condonation is granted.
APPLICATION OF THE LAW TO THE FACTS
2. Prospects of success in the envisaged appeal
The applicant's grounds of appeal mostly allude to a dissatisfaction with the court a quo's findings leading to the dismissal of his appeal. Some of the grounds are on findings of fact and not on questions of law.
It would appear that the need to clearly raise grounds of appeal on questions of law were lost in his gripe with the court a quo's decision.
In Sheckem Ngazimbi v Murowa Diamonds (Pvt) Ltd SC27-13, this Court explained the purpose of an application for leave to appeal as follows:
“The purpose of requiring leave, before noting an appeal, to be given by the President of the Labour Court, or, upon refusal, by the judge of the Supreme Court, in terms of section 92F(2) of the Act, is to prevent appeals not based on questions of law getting to the Supreme Court. The right to appeal given by section 92F(1) is a limited right. The exercise of it is made conditional upon leave being granted.”
The question is thus whether there are prospects of success in those grounds that relate to questions of law.
Prospects of success refer to the question of whether the applicant has an arguable case on appeal.
In Essop v S [2016] ZASCA 114, the court, in defining prospects of success, held that:
“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.
In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.
In Chikurunhe v Zimbabwe Financial Holdings SC10-08, the Court held that:
“The party seeking leave must show, inter alia, that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”
In casu, the applicant intends to appeal against the judgment of the court a quo on the basis, that, the court erred by failing to uphold his grounds of appeal against the lower tribunal's disciplinary process that resulted in his being dismissed from employment, which he alleged was flawed.
The applicant avers, that, his right to be heard or to respond to the investigations, the right to an informed response, and the right to meaningful legal representation were violated.
The applicant also claims, that, he was denied the right to defend himself, the right to call witnesses, and the right to request documents with which he could defend the charges against him.
The court a quo held, that, upon his suspension from work being lifted, the applicant failed to report for duty.
The court further held, that, the applicant's legal practitioner walked out of the hearing and failed to challenge the evidence against the applicant, hence, the applicant could not blame anyone for that.
In Zesa Enterprises (Pvt) Ltd v Stevawo SC29-17…, it was held that:
“The right to be heard is a fundamental cornerstone of our law. It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our Constitution as read with the Administrative Justice Act [Chapter 10:28]. The maxim that no one shall be condemned without being heard holds sway in our law.”
In that case, the Court went on to qualify the right to be heard as follows:
“The right to be heard is, however, not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault….,. Professor G. Feltoe in his booklet, A Basic Introduction to The Administrative Law of Zimbabwe, states at p18, that, the principle of natural justice can be waived when he says:
'Clearly, when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice, and he declines to avail himself of this right, then, he has waived his right.'”
Further, in David Moyo v Rural Electrification Agency SC04-14 ZIYAMBI JA had this to say concerning an employee who had failed to attend a disciplinary hearing despite knowledge thereof:
“In our view, the appellant, by deliberately absenting himself, without leave, from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.”
In casu, it is common cause that the applicant was suspended from employment after which the suspension was lifted within three days of the date of suspension. The applicant was thereby required to report for duty.
The letter lifting the suspension was served at his residential address which he had provided.
He did not report for duty, hence, disciplinary proceedings were instituted.
The applicant was notified of the disciplinary proceedings against him and the date of the hearing. Whilst the applicant was not present in person, as he averred that he had left for China upon being suspended, he was legally represented by a legal practitioner of his choice.
It is not disputed that the appellant left for China without the respondent's authority.
The applicant submitted a written response to all the charges against him. His legal practitioner…, duly attended the disciplinary hearing whereat he presented the applicant's written response to all the charges and this was accepted by the disciplinary authority.
However, when the legal practitioner's request for a 7 months long postponement of the hearing was rejected, the legal practitioner left the hearing before it ended on the basis, that, he had no further instructions from his client.
As a result, the applicant failed to challenge the evidence placed before the disciplinary authority.
In the circumstances, it cannot be said that the applicant was denied the right to be heard and to defend himself. Such right was accorded to him, and subsequently waived by his legal practitioner when he walked out of the disciplinary hearing....,.
His legal practitioner presented his written response to the charges. Unfortunately, the legal practitioner, thereafter, opted to walk out of the hearing.
The opportunity to argue the applicant's case, and even cross examine witnesses, was there for the taking, but, he opted to leave. Clearly, this is a situation where the applicant was afforded what he now craves for but opted not to take it at the time.
It cannot therefore be said, that, he was denied an opportunity to participate in the disciplinary proceedings.
