CHAMBER
APPLLICATION
CHITAKUNYE
JA: 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
judgment. 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 SC
4/05;
Easter Mzite v Damafalls Investments
(Pvt)
Ltd
SC 21/18.
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)
at 357.
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
1.
Extent of the delay and reasonableness of the explanation
It
is incumbent upon the applicant to give an explanation for the
failure to act in terms of the dictates of the rules.
In
casu,
the judgment which the applicant seeks to appeal against
was handed down on 8 February 2022. The application for leave to
appeal in the court a
quo
was
dismissed on 6 June 2023. In terms of the proviso to Rule 60(2) of
the Supreme Court Rules, the applicant had ten (10) days within which
to seek leave to appeal from this Court. The applicant ought to have
sought leave to appeal from this Court by 20 June 2023. This
application was filed on 8 August 2023. The applicant is thus 35
days out of time. In the circumstances the applicant is required to
proffer a reasonable explanation for the entire period of the delay.
Whether such a delay is inordinate or not depends on the
circumstances of each case.
In
his founding affidavit the applicant lamentably failed to provide any
explanation for the delay in this period. In none of the 25
paragraphs of the founding affidavit did the applicant make any
reference to the delay and reasons thereof in noting the present
application. He instead concentrated on the history of the dispute
with the respondent up to the court a
quo's
dismissal of his application for condonation for late noting of
application for leave to appeal and for leave to appeal to this
Court.
Though
no mention is made in the founding affidavit of any supporting
affidavit, attached to the application is an affidavit by a legal
practitioner, Rebecca
Mbawa,
attempting to explain some of the causes for the delay.
That
affidavit falls short of what is expected in that the deponent
thereof simply alludes to bleeps and blunders occasioned in her
office in drafting and filing a similar application in SC378/23 which
was struck off the roll on 27 July 2023 for being fatally defective.
There
is nothing said about why it then took applicant up to 8 August 2023
to file the present application.
I
am of the view that whilst the delay may not seem inordinate, the
lack of explanation for some of the periods is disconcerting. It is
as if the applicant took it for granted that explaining the history
of the case will suffice to get the court's sympathy.
The
applicant has not given any reason for the delay in seeking leave
from this Court after his application before the court a
quo
was
dismissed. Instead, the applicant explains why he delayed seeking
leave from the court a
quo,
and how the first application he made before that court
was
struck off the roll for being made out of time without seeking
condonation for the delay.
In
Zimslate
Quartzite (Pvt) Ltd & Ors v Central African Building Society
SC
34/17
at
p7 this Court aptly stated that:
“An
applicant, who has infringed the rules of the court before which he
appears, must apply for condonation and
in that application explain the reasons for the infraction.
He
must take the court into his confidence and give an honest account of
his default in order to enable the court to arrive at a decision as
to whether to grant the indulgence
sought.
An
applicant who takes the attitude that indulgences, including that of
condonation, are there for the asking does himself a disservice as he
takes the risk of having his application dismissed.”
(My
emphasis)
Furthermore,
in Lunat
v Patel
SC
47/22 at p6, CHATUKUTA JA held that:
“A
party seeking condonation and extension of time must satisfy the
court that a
valid and justifiable reason exists as to why compliance did not
occur and why non-compliance should be condoned. Further,
regardless of the prospects of success, a court may decline to grant
condonation where it considers the explanation for failure to comply
with the rules unacceptable.”
(My
emphasis)
In
view of the fact that the applicant has not explained his failure to
file the current application within the prescribed time limits, based
on the authorities above, I am of the view that the applicant has
failed to give a reasonable explanation for his failure to comply
with the rules of Court. He in fact has not given any explanation for
some of the periods relative to this application.
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
SC 27-13,
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.”
(My
emphasis)
In
Chikurunhe
v
Zimbabwe Financial Holdings
SC
10-08
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 tribunals 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
SC 29/17 at p4, 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
SC
4/14
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, Mr Choga, 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.
In
casu,
the applicant chose to leave for China at a time he was on suspension
without obtaining authority from the respondent.
The
applicant's contention seemed to be oblivious of the legal effect
that a suspension does not release an employee from his contract of
employment or grant him the authority not to avail oneself when
required by the employer.
In
Gladstone
v Thornton's Garage
1929 TPD 116 the court stated that:
“When
an employee is suspended it appears to me that apart from any express
instructions, he must hold himself available to perform his duties if
called upon; though for the time being he is debarred from his work.
It appears to me that that is distinct from dismissal - the use of
the term 'suspended' is an indication that, while he is not to
perform his duties, he must still remain bound to his employer under
his contract of service.”
In
Zimbabwe
Sun Hotels (Pvt) Ltd v Lawn
1988
(1) ZLR 143 (SC), GUBBAY JA (as he then was) aptly confirmed this
position in this jurisdiction as follows:
“Plainly
the obligation of an employee who is placed under suspension to hold
himself available to performing his duties if called upon to do so,
is one which arises by operation of law. It is of no consequence
therefore that no provision in that regard is contained in the
contract of service; and it is not necessary for the employer at the
time of suspension to so inform the employee.”
The
applicant by leaving for China deliberately made himself unavailable
to report for duty and to even attend the disciplinary hearing in
person.
It
was in this scenario that he appointed a legal practitioner to
represent him.
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.
There
are clearly no prospects of success on appeal against the court a
quo's
decision dismissing the applicant's appeal in the circumstances.
The
application ought to fail on that basis.
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.
The
above reasons were the cornerstone of my decision to dismiss the
appellant's application for condonation for late noting of an
application for leave to appeal and for leave to appeal.
Accordingly,
the application was dismissed with costs.
Jakachira,
Chizodza & Company,
applicant's legal practitioners
Mushonga
& Associates, respondent's
legal practitioners
