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.”...,.
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....,.
DISPOSITION
The applicant failed to give a reasonable explanation for the delay in seeking leave to appeal from this Court and there are no prospects of success. With these findings, it is unnecessary to consider prejudice to the respondent should the application succeed....,.
