BERE
JA:
This
is an appeal against the whole judgment of the Labour Court of
Zimbabwe dated 14 July 2018, wherein an application for condonation
for failure to file an application for leave to appeal in time was
dismissed.
Briefly,
the background to this matter is as follows:
The
respondent was employed as an accountant by the appellant. He was
charged with misconduct, that is, wilful disobedience of a lawful
order given by the employer. The respondent was found guilty and his
contract of employment was terminated.
The
respondent then appealed to the Labour Court which upheld his appeal
on 8 April 2016.
In
terms of section 35 of S.I.59/06 the appellant ought to have sought
leave to appeal to this Court within 30 days from the date of the
judgment of the Labour Court.
Having
failed to observe the prescribed time limits the appellant sought
condonation for the late noting of its application for leave to
appeal before the Labour Court.
In
deciding the application for condonation, the Labour Court concluded
that the appellant had not been candid with the court on its
explanation for the delay. The court held that it was unnecessary for
it to deal with the other principles applicable in applications for
condonation. The court proceeded to dismiss the application for
condonation before it with costs.
It
is this finding of the court a quo which has led to this appeal.
The
appellant having obtained leave to appeal to this Court on 24
November 2017, noted this appeal on the grounds stated hereunder:
“1.
The Labour Court erred in law in its refusal of the application for
condonation for failure to comply with the Rules on the basis that
there were 'no compelling circumstances which justified a finding
in Applicant's favour', when such is not the test applicable in
an application such as the one which was before the court.
2.
The Labour Court erred in law, in finding that it was unnecessary to
consider all the principles applicable in an application such as the
one that was before it, with the result that the court did not
consider all the other factors which weighed heavily in favour of the
application being granted.”
ISSUE
FOR DETERMINATION
Whether
or not the court a quo erred in dismissing the application for
condonation
THE
LAW
The
issue that arises from these grounds of appeal is whether the test
applicable in matters for condonation was properly applied to the
facts of this present matter by the court a quo.
The
requirements for condonation have been set out in a plethora of
cases, including the case of Bessie Maheya v Independent Africa
Church SC58/07. In that case the court stated the following:
“In
considering applications for condonation of non-compliance with its
Rules, the Court has a discretion which it has to exercise judicially
in the sense that it has to consider all the facts and apply
established principles bearing in mind that it has to do justice.
Some of the relevant factors that may be considered and weighed one
against the other are:
(i)
the degree of non-compliance;
(ii)
the explanation therefore;
(iii)
the prospects of success on appeal;
(iv)
the importance of the case;
(v)
the respondent's interests in the finality of the judgment;
(vi)
the convenience to the Court; and
(vii)
the avoidance of unnecessary delays in the administration of
justice.” (emphasis added).
A
reading of the record shows that the court a quo took into account
one of the requirements to be considered in an application for
condonation. Consequently, the enquiry that the court a quo made was
inconclusive.
The
court only considered the extent of the delay and ended there. It did
not have regard to the other considerations for the granting of
condonation. This is apparent from the judgment of the court a quo
where the learned judge concluded her judgment by stating:
“I
am convinced that this is a case in which the sins of the legal
practitioner are visited on the client. I therefore do not consider
it necessary to deal with whether or not other principles applicable
in condonation are favourable to applicant.” (emphasis added).
Issues
to do with the prospects of success on appeal, the importance of the
case, the respondent's interests in the finality of the judgment,
the convenience to the court, and the avoidance of unnecessary delays
in the administration of justice were completely brushed aside by the
court a quo. See Paul Gary Friendship v Cargo Carriers Limited &
Anor SC1/13.
The
finding that the explanation for the delay was unreasonable became
the basis for the court a quo's justification in not considering
the other factors that ought to be taken into account in condoning a
party who is in breach of the Rules.
With
this finding, the court a quo resorted to visiting the sins of the
legal practitioners on the client and dismissed the application for
condonation.
In
light of the above, Mr Mubvuma for the appellant argued that as the
court a quo had failed to consider all the requirements for
condonation cumulatively, the appeal had to be allowed.
Per
contra, Mr Muzana contended that, the court a quo had power to
exercise its discretion in such matters even without considering all
the laid down requirements. He further argued that this could be done
without taking into account the merits of the matter hence the appeal
lacked merit.
I
do not agree with this proposition of the law.
It
was incumbent upon the court a quo to deal with all the
considerations in the determination of the application for
condonation. Failure to do so was a misdirection on the part of the
court. It ought to have first applied the laid down principles to the
facts of the case before proceeding to justify the stance it took in
opting to dismiss the application for condonation.
In
the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA
717 (A) at 720F-G, the principles of the law are re-stated as
follows:
“It
is well established that, in considering applications for
condonation, the Court has a discretion, to be exercised judicially
upon a consideration of all of the facts; and that in essence it is a
question of fairness to both sides.
In
this enquiry, relevant considerations may include the degree of
non-compliance with the Rules, the explanation therefor, the
prospects of success … (on the merits), the importance of the case,
the respondent's interest in the finality of his judgment, and the
avoidance of unnecessary delay in the administration of justice.
The
list is not exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay and a good
explanation may help compensate for prospects of success which are
not strong.” (emphasis added).
Condonation
remains a sole discretion of the court, which discretion has to be
exercised judicially upon a consideration of all facts at all times
with a view of doing justice between man and man.
A
reading of the United Plant Hire (Pty) Ltd case, supra, shows that
such exercise of discretion must be done after a consideration of all
the relevant factors.
The
case of Ngirazi v Saurosi & Anor HB84-16 exhibits how the courts
weigh the factors one against the other in granting condonation. It
was stated as follows:
“It
is settled in this jurisdiction that where the explanation for the
delay is unsatisfactory then the prospects of success of the appeal
must be really great before the court can exercise its discretion to
condone the non-compliance.
As
stated by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O 1966 RLR
60 (AD) at 64;
'----
the more unsatisfactory the explanation for the delay, so much
greater must be the prospects of success of the appeal be, before the
delay will be condoned and the converse must of course be equally
true, the more satisfactory are the explanations for the delay, the
more easily will the court be inclined to condone the delay provided
it thinks there is prospects of the appeal succeeding.'”
See
also Maheya v Independent African Church 2007 (2) ZLR 319 (S) at 323
B-C.
It
is apparent from the above cases that all the laid down factors ought
to be taken into account when dealing with an application for
condonation.
This
was not done in the application a quo.
Instead
of individually dealing with these factors and weighing them one
against the other, the court a quo opted to deal with only the
explanation for the delay. This was a misdirection on the part of the
court a quo.
In
the case of Tshova Mubaiwa Transport Co-Operative Limited and Ors v
Mpofu and Ors HB167-04, it was further stated that;
“While
these courts have on many occasions held that a litigant chooses his
legal representative and it is through that choice that he should
either succeed or fail in that litigation. However, this approach
should not be adopted as a cut and dry principle. Applicant's
explanation together with other factors supra should also be
considered… Therefore to allow one party to find a way out of the
problem through a technical fault will be a failure by these courts
to do justice between man and man”.(emphasis added)
The
court a quo failed to determine the issues that were before it. It
failed to make a determination on whether or not the appellant had
satisfied all the requirements for condonation. This was a serious
misdirection that warrants interference by this Court.
This
is a case where a remittal of the matter to the court a quo for a
consideration of all the requirements for condonation to be done.
Those principles ought to be weighed one against the other before the
application can be determined. This is so because the merit in one of
the principles may help in compensating the weaknesses or lack of
merit in the other laid down principles.
Accordingly,
it is ordered as follows:
1.
The appeal succeeds with costs.
2.
The judgment of the court a quo is set aside.
3.
The matter is remitted to the court a quo for consideration of the
proper requirements for condonation.
MAKARAU
JA: I agree
GOWORA
JA: I agree
Mtetwa
& Nyambirai, appellant's legal practitioners
Mushungwe
& Company, respondent's legal practitioners
