MATANDA-MOYO J: This is an application for condonation for
late filing of an application for review. The brief facts are that the
applicant was a student at Midlands State University. Sometime in early
2013 the applicant sent pornographic video to H- Metro involving two students
of the first respondent. As a result the applicant was charged with
contravening s 3.1.4 of the Code of the Rules of student Conduct and Discipline
(Ordinance 2 of 2000) that is, engaging in conduct likely to be harmful to the
interest of the university, members of the university staff on students.
The applicant pleaded guilty to the charge and was sentenced to expulsion from
the university. Such decision was communicated to him on 8 July
2012. The applicant had 8 weeks from that date to file his application
for review, which meant he should have done so by 10 September 2012.
From 8 July 2012 to 30 September 2013 translating to a full year and three
weeks the applicant did not lodge his application for condonation.
The Law
In deciding applications of this nature the following
factors are taken into consideration
1) Length of the delay
2) The reasons for the delay
in noting the application
3) The prospects of success
on the merits should the condonation be granted and
4) The prejudice likely to be
suffered by the respondent should the application succeed.
In as afar as I am concerned the applicant did not proffer
a reasonable explanation for the 1 year 3 weeks delay in lodging this
application, that their initial application for condonation was dismissed for
procedural non-compliance does not hold any water, they ought to have withdrawn
the defective application and immediately proceeded with a new application.
Prospects of success on merits
The applicant has not prospects of succeed at all and the
submissions made on his behalf have not been helpful at all. A bare
assertion is made in para 14.1 of the applicant's affidavit wherein the
applicant merely states that the decision to expel him “was grossly
unreasonable to an extent that no other sober minded tribunal would have
reached the same.”
No reference has been alluded to pertaining to a
misdirection irregularities or malice, bias. In the record of proceedings
hence the applicant's case is bound to crumble down before its inception.
I am inclined to agree with the respondents that what the
applicant is seeking is an appeal ostensibly cauched as a review.
The prayer asked for by the applicant reads
“a) the decision of the respondents to expel applicant from
first respondent's institution be set aside and substituted with an order
reinstating the applicant back to his studies at first respondent's
institution.”
What is clear from this is that the applicants are
attacking the merits of the decision not the manner in which the decision was
arrived at. See Zhou v Global Motors and Anor SC67/04, Dandazi
v Colliery Co Limited 2001 (2) ZLR 298 H @ 302 A, Kambuta &
Ors v Dunlop Zimbabwe Limited & Anor HB 14/04 and Exparte
Miss 1993 (1) ZLR 233H.
In light of this lack of bearing as to the requisites for
review proceedings I see no reason to proceed with other requirements for an
application for condonation.
The application is accordingly dismissed with costs.
Mudambanuki & Associates, applicant's legal practitioners
Dzimba,
Jaravaza & Associates, respondents' legal practitioners
