GUVAVA
JA:
This
is an appeal against the entire judgment of the Labour Court sitting
at Gweru dated 12 March 2013 dismissing the appellant's application
for condonation for leave to file his appeal out of time.
BACKGROUND
Although
the facts of this matter are mainly common cause, it is necessary to
set them out in some detail in order to determine whether the court a
quo
exercised
its discretion judicially.
The
appellant was employed by the respondent as a creditor's clerk. He
was charged under the relevant Code of Conduct with the offence of
“any conduct or omission inconsistent with the fulfillment of the
express or implied conditions of his contract of employment and
willful disobedience to a lawful order”.
It
was alleged that the appellant failed to comply with written and
verbal instructions given to him on 24 May 2001 regarding the
checking of daily banking.
Following
a disciplinary hearing he was found guilty and dismissed on 15 August
2002.
He
appealed against the decision to the internal Appeals Committee which
upheld the decision of the Disciplinary hearing on 4 September 2002.
About
five months later, the appellant alleged that he filed a notice of
appeal with the Labour Relations Tribunal Court on 26 February, 2003.
The respondent asserted that they were not served with the notice of
appeal and there is no proof in the record that they were served.
The
matter was never prosecuted.
The
appellant states in his founding affidavit that he made several
inquiries with his legal practitioners about the appeal but did not
get a satisfactory response. On 5 July 2006 he retrieved his file
from his erstwhile legal practitioners and instructed new counsel.
His new legal practitioners wrote a letter to the registrar of the
labour Tribunal enquiring about the appeal. As they did not have a
reference number they did not receive a response.
Through
his new counsel, the appellant then filed a chamber application for
Condonation of late noting of appeal and extension of time at the
Labour court in November of 2006.
This
application, for some unknown reason, was only served upon the
respondent in October 2012.
Perturbed
by his new lawyers seeming ineptitude, the appellant wrote a letter
of complaint to the Secretary of the Law Society of Zimbabwe in
October of 2010 complaining against the legal practitioners. His
legal practitioners then renounced agency.
He
then enlisted the services of another lawyer.
Following
the application for condonation made in 2006, the appellant then
filed heads of argument in December of 2012.
The
Labour Court dismissed the application for condonation of late noting
of appeal and extension of time on 12 March 2013.
After
a further five months, on 26 August 2013, the appellant filed for
condonation for late filing of an application for leave to appeal to
the Supreme Court.
This
application was dismissed by the court a
quo. He
subsequently filed another application for leave to appeal which was
eventually granted.
The
appellant then filed his appeal with the Supreme Court on 19 November
2014.
The
appellant has appealed to this court on four grounds which he set out
as follows:
“1.
The Court a
quo
misdirected itself by dismissing an application on the basis of the
extent of delays occasioned to the appellant by members of this
honorable court and their resultant failure to proffer reasonable
explanation for the professional ineptitude.
2.
The court a
quo
erred in failing to place importance of the case to the public at
large which protection should only be seen to be given by this
honorable court exclusively as one of the main purposes of the act.
3.
The court a
quo
misdirected itself by upholding the need to put finality to
litigation at the expense of justice thereby ignoring the record that
clearly showed seriousness of purpose displayed by the now
self-acting appellant throughout his case as a court of equality.
4.
The Court a
quo
erred by conditioning the glaring misrepresentation by a legal
practitioner who forged appellants signature of an affidavit after
inheriting the case from another lawyer who had also inadvertently
and unjustifiably delayed to note an appeal as required by the
hallowed rules of the Labour Court as provided for in Statutory
Instrument (S.I.) 59 of 2006.”
As
can be seen from the grounds of appeal the appellant is dissatisfied
with the manner in which the court a
quo
dealt with his application for condonation of the late noting of an
appeal. It is therefore necessary to ascertain whether the court a
quo
complied with the requirements of the law in respect to such
applications.
REQUIREMENTS
FOR AN APPLICATION FOR CONDONATION
In
the case of Forestry
Commission v Moyo
1997
(1) ZLR 254 (S), GUBBAY CJ sets out factors to be considered in such
an application. These are as follows:
(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 Marick
Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor
HH667/15.
The
appellant explains the delay by giving a series of unfortunate
interactions with inefficient lawyers.
KORSAH
JA in Kombayi
v Berkout
1988 (1) ZLR 53 (SC) stated thus:
“The
broad principles the Court will follow in determining whether to
condone the late noting of an appeal are: the extent of the delay;
the reasonableness of the explanation for the delay; and the
prospects of success. If the tardiness of the applicant is extreme,
condonation will be granted only on his showing good grounds for the
success of his appeal.”
In
casu,
even if the court were to disregard the time the appellant spent
changing lawyers, the appellant disregarded the restriction of time
placed by the Labour Court Rules.
Rule
15(1) provides for 21 days to note an appeal once one has received
the decision.
The
period between the granting of the judgment in 2002 and noting of the
appeal after instructing the first lawyer in February of 2003 is well
beyond the 21-day limit.
No
justifiable excuse has been proffered by the appellant as to why it
took him so long to file the appeal.
The
application for condonation was made on 12 November 2006, but only
served on the respondents in 2012. They quickly opposed the
application but the Heads of Argument were only filed on 27 December
2012.
From
the papers before me no explanation was made for this delay.
The
court a
quo
cannot be faulted for finding that the delay was caused by the
appellant's own dilatoriness.
In
the case of H.
J. Vorster (Private) Limited
v Save
Valley Conservancy
SC20/14 this court concluded that:
“…there
was no merit in the application for condonation because the
applicant's predicament was due to its own dilatoriness. Having so
found, the court proceeded to dismiss both applications with costs on
the legal practitioner and client scale.”
With
regard to the appellant's allegation that it was the incompetence
of his erstwhile legal practitioner that led to the excessive delays
the court
a
quo,
correctly, in my view, held that even where this is the case one
cannot seek to insulate himself using such a defence.
A
litigant will not be completely absolved for the incompetence of his
or her legal practitioner.
This
principle was set out in the case of Kombayi
v Berkout (supra)
at p56 where KORSAH JA quoted with approval the case of Saloojee
& Anor NNO v Minister of Community Development
1965 (2) SA 135 (A)
at 141C where it was stated that:
“There
is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the
explanation tendered.
To hold otherwise might have a disastrous effect upon the observance
of the rules of the Court. Considerations
ad
misericordium
should not be allowed to become an invitation to laxity.”
(Own emphasis)
It
should also be noted that in the case of Ganda
v
First Mutual Life Assurance Society
SC/01/05 the court was at pains to
explain
that it is not enough for one seeking condonation to simply explain
the delay of the failure to observe the rules in the main appeal but
one needs to do so also with the delay in the seeking
of the condonation.
“In
addition, it is pertinent to note that it has been stated in a number
of cases that a person seeking condonation of the late noting of an
appeal should give a reasonable explanation, not
only for the delay in noting the appeal, but also for the delay in
seeking condonation.
Thus,
in Saloojee
and Anor, NNO v Minister of Community Development
1965
(2) SA 135 (A) at 138H STEYN CJ said:
'What
calls for some acceptable explanation is not only the delay in noting
an appeal and in lodging the record timeously, but also the delay in
seeking condonation.
As
indicated, inter alia, in Commissioner for Inland
Revenue v Burger 1956
(4) SA 446 (A) at p449, and in Meintjies case supra [Meintjies v H.D.
Combrinck (Edms) Bpk 1961 (1) SA 262 (A)] at p264, an appellant
should, whenever he realizes that he has not complied with a Rule of
Court, apply for condonation without delay.'”
In
the case of Musiyarira
v Rufaro Marketing
SC96/05 this court highlighted that it will be slow to interfere with
a court a
quo's
decision on condonation as it involves the exercise of discretion.
“Condonation
of the late noting of an appeal and granting an extension of time
within which an appeal is to be noted are matters within the
discretion of the court of first instance. Unless
it has been shown that the learned President of the Labour Court
misdirected herself in dismissing the application, this Court will
not interfere with the exercise of that discretion.
The
delay was indeed inordinate. The explanation given for the delay was
correctly found unacceptable. There is nothing to gainsay the finding
by the court a
quo
that
there were no prospects of success on appeal.”(My
emphasis)
The
law is clear that there must be finality to litigation.
McNALLY
JA spoke on this in Ndebele
v Ncube
1992 (1) ZLR 288 (S) at 290C- E when he said the following:
“It
is the policy of the law that there should be finality in litigation.
On
the other hand one does not want to do injustice to litigants. But it
must be observed that in recent years applications for rescission,
for condonation, for leave to apply or appeal out of time, and for
other relief arising out of delays either by the individual or his
lawyer, have rocketed in numbers. We are bombarded with excuses for
failure to act. We are beginning to hear more appeals for charity
than for justice. Incompetence is becoming a growth industry. Petty
disputes are argued and then re-argued until the costs far exceed the
capital amount in dispute.
The
time has come to remind the legal profession of the old adage,
vigilantibus
non dormientibus jura subveniunt-
roughly translated, the
law will help the vigilant but not the sluggard.”
(Own emphasis)
The
appellant attempts to rely on Dalny
Mine v Musa Banda
1999 (1) ZLR 220 (S) at 221 where the court stated that deciding
labour matters on technicalities is not desirable.
However,
if one examines the quote in full from this case, McNALLY JA stated
as follows:
“As
a general rule it seems to me undesirable that labour relations
matters should be decided on the basis of procedural irregularities.
By this, I do not mean that such irregularities should be ignored. I
mean that the procedural irregularities should be put right…
I
would think it often superfluous for the Tribunal to hear evidence
relating to the irregularities.
I
say 'often' because there may be cases in which this is not so.
It
may be that the existence of irregularities will affect the date from
which the termination of employment takes effect. It may sometimes
take effect from the date on which the irregularity is cured.” (My
Emphasis)
As
can be observed, his remarks are not a blanket cover for all
technical defects.
It
was highlighted that there are circumstances where a decision on
technicalities could be warranted and in my view, this case is one
such example.
The
appellant's lack of diligence was of such gross magnitude that it
ceased to be a mere technicality that can be cured.
With
regards to the prospects of success, the appellant has not shown that
he has any prospects of success on appeal.
His
complaint was merely that the case had never been heard on the
merits.
This
is not sufficient.
He
must allege facts which if proved would show that he had prospects of
success.
To
grant condonation in respect of an appeal with little to no prospects
of success only serves to clog the judicial system.
In
casu,
the merits of the appeal cannot even be ascertained as they were
never explored in a trial court.
From
its inception this matter has been a series of applications for
condonation and cries for mercy. The appellant alleges that this
amounts to denying him a right to be heard for procedural
technicalities.
However,
it is clear that in the twelve years the matter has lingered in the
justice system, if the appellant had been diligent he would have had
his day in court.
In
my view the appellant has failed to establish any justification for
the delay which necessitated repeated requests for condonation.
Further, the appellant has failed to demonstrate any prospects of
success if condonation were granted and the appeal were to be heard.
Finally, the potential prejudice to the other party is totally
unacceptable. Not only has the respondent been put out of pocket in
defending the multitude of applications but the matter has not to
date been finalized.
Finally,
the appellant does not allege that the court a
quo
failed to exercise its discretion properly.
As
was stated in the Vorseter
case
(supra) by PATEL JA:
“As
for the judgment appealed against, we are unable to find any fault or
impropriety in the exercise of the court's discretion. Indeed,
counsel for the appellant was unable to identify any misdirection by
the court a
quo
in
the exercise of its discretion to dismiss the applications for
condonation and rescission of default judgment.”
DISPOSITION
There
must be finality to litigation.
Twelve
years is a remarkably long time before a matter is finalized by any
standard. As such the court
a
quo
cannot be faulted in dismissing the application.
Accordingly,
I make the following order:
1.
The appeal is hereby dismissed.
2.
The appellant shall pay the respondent's costs of suit.
ZIYAMBI
JA: I
agree
GOWORA
JA: I
agree
Coghlan
and Welsh,
respondent's
legal practitioners
