HLATSHWAYO
JA:
This
is a chamber application for condonation for failing to note an
appeal within the prescribed time limits and extension of time within
which to note an appeal in terms of r43 of the Supreme Court Rules,
2018 (the Rules). The applicants seek an order in the following
terms:
1.
The application for condonation for non-compliance with r38 of the
Supreme Court Rules, 2018 be and is hereby granted.
2.
The application for extension of time within which to file and serve
a notice of appeal in terms of the rules be and is hereby granted.
3.
The notice of appeal shall be deemed to have been filed on the date
of this order.
4.
The costs shall be in the cause.
BACKGROUND
The
applicants in this matter were employed by the respondent. In 2014,
they received letters notifying them that they were being retired as
they had reached the age of sixty years.
At
the time the first applicant was sixty-two years, the second
applicant sixty-four years and the third applicant sixty-two years.
The
first applicant had been in the employ of the respondent for forty
years, the second applicant for thirty-five years and the third
applicant for twenty-one years.
The
letters advised them that they would receive their terminal benefits
including three months' notice and a continued use of their
designated company vehicles.
The
applicants challenged this retirement by making an application for a
declaratur
in the High Court (the court a
quo).
They
argued that s11(1) of the Local Authorities Employees Principal
Pension Scheme, in terms of which they had been retired, did not
apply to them as they had passed sixty years.
They
argued that since they had been in employment past the age of sixty
they could only be retired at the age of sixty-five and that they now
had a valid legitimate expectation to be retired at sixty-five since
they had gone past the age of sixty without being retired.
They
further argued that the pension regulations provided for retirement
at the ages of fifty-five, sixty and sixty-five and not in between
those ages.
Furthermore,
according to the applicants, their retirement was discriminatory
since other employees who were in similar positions had been
retrenched and not retired.
In
the circumstances the applicants prayed for a declaration to the
effect that the purported retirement was a legal nullity and that the
respondent was to be ordered to reinstate or retrench them.
DETERMINATION
OF THE COURT A
QUO
The
court a
quo
noted that the major question for determination was whether or not
the respondent's pension scheme applied to the applicants.
The
court found that the applicants' argument that the pension scheme
did not apply to them was without merit. This was because the
respondent's pension scheme was regular and the applicants, by
joining the respondent, had accepted to be bound by its pension
scheme and according to this scheme the normal retirement age was
sixty years.
The
court further found that the applicants' argument that the
respondent was precluded from retiring them in between the segments
of fifty-five years to sixty years and sixty to sixty-five years,
lacked merit because nothing in s11 of the respondent's pension
scheme suggested that. According to the court a
quo
the applicants' legitimate expectation that they would not be
retired before attaining the age of sixty-five years had no
foundation because the pension scheme did not suggest that in any
way.
The
court held that in terms of the respondent's pension scheme, it was
purely at the discretion of the employer for an employee to continue
serving after his attainment of sixty years of age and as such there
was nothing precluding the respondent from retiring the applicants.
The
applicants having gone past the normal age of retirement, the court a
quo
found that they were serving at the pleasure of the respondent and as
such the respondent was entitled to dispense with their services at
any time.
The
court a
quo
thus dismissed the application with an order of costs.
Aggrieved
by that decision, the applicants noted an appeal with this Court on 6
October 2015 under case number SC549/15.
The
applicants failed to pay costs for the preparation of the record and
the appeal was deemed abandoned on 6 January 2016.
On
19 March 2019 the applicants filed a chamber application for
condonation of late filing of an application for reinstatement of the
appeal and extension of time within which to pay costs for the
preparation of the record.
However,
the application was later withdrawn on the basis that the nature of
the relief sought was unascertainable and, subsequently, the
application was removed from the roll on 28 May 2019.
Again,
a similar application was filed and subsequently withdrawn on 5 July
2019 on the basis that the notice of appeal appended to the
application did not comply with r43(3) as read together with r37(1)
of the Rules.
The
applicants then filed the present application for condonation for
failing to note an appeal within the prescribed time limit and
extension of time within which to note an appeal against the judgment
of the court a
quo.
APPLICANTS'
SUBMISSIONS
The
applicants' counsel, Mr Mambara,
conceded that the delay was inordinate but, however, submitted that
the explanation for that delay was reasonable.
The
applicants submitted that the reason for delay was due to the fact
that they could not pay the requested costs for preparation of the
record the first time they filed the appeal and as a result the
appeal was deemed lapsed.
The
reason for the failure to pay the costs according to the applicants
was because they could not afford to provide the same since the
respondent had not paid their salaries which would have enabled them
to pay the costs.
It
was the applicants' case that by the time they received money from
the respondent, the appeal had already lapsed.
The
applicants also attributed their failure to note the appeal on time
to wrong advice from their erstwhile legal practitioner who notified
them that since their appeal had been deemed abandoned this marked
the end of their appeal.
It
was the applicants' case that being laymen they thought this meant
there was no other way their matter could be heard by this Court.
They
also averred that the case of Nyamande
& Anor v Zuva Petroleum (Pvt) Ltd & Anor
2015 (2) ZLR 186 (S) discouraged them from prosecuting their appeal.
The
applicants thus submitted that, faced with the wrong legal advice and
the Zuva
judgment, they thought that they had no recourse whatsoever.
According
to the applicants it was the success of their colleague's case,
Mubvumbi
v City of Harare
SC64/18 which prompted them to file an application for condonation
for failing to note an appeal within the prescribed time limit and
extension of time within which to note an appeal.
On
the prospects of success, the applicants' counsel argued that their
appeal had bright prospects of success because the Mubvumbi
judgment, which was allegedly on all fours with the circumstances of
their case, had been successful before this Court and as such they
expected the same for their case.
The
applicants further submitted that the matter was important in that it
related to administrative justice. They argued that, since they had
served the respondent for a long time, their discharge with immediate
effect amounted to arbitrary dismissal.
RESPONDENT'S
SUBMISSIONS
The
respondent's counsel submitted that even though the applicants had
admitted that the delay was inordinate, they had omitted to disclose
that the degree of non-compliance was extremely long - three years
and nine months.
The
respondent further argued that the applicants' reasons for delay
had no merit and their numerous applications were an abuse of court
process.
Mr
Mapuranga,
for the respondent, further noted that the applicants averments that
they did not have money to pay costs were false because they managed
at the same time to raise substantially higher fees to brief and pay
counsel for legal opinions and, in any case, they had an option to
proceed in
forma pauperis
but they did not, thus making their explanation unreasonable.
The
respondent further argued that the applicants case was
distinguishable from the Mubvumbi
case and the fact that the applicants took time to approach this
Court, even after the Mubvumbi
case, shows that they have no prospects of success.
He
further submitted that the applicants should have attached an
affidavit from their legal practitioner showing that he had given
them wrong advice and failure to do so weakened their reason for the
delay in noting the appeal.
Mr
Mapuranga
also argued that the applicants appeal was supposed to stand or fall
on their grounds of appeal yet they had failed to motivate the
grounds and demonstrate the prospects of success on appeal.
As
such it was the respondent's submission that the applicants had
failed to show cause why they should be granted condonation and
extension of time within which to note their appeal.
THE
LAW
It
is a trite principle of law that a party who fails to comply with the
rules of this Court must apply for condonation and give adequate
reasons for his or her failure to comply with the rules. Rule
38(1)(a) states that:
“(1)
An appellant shall institute an appeal within the following times -
(a)
By filing and serving a notice of appeal in compliance with subrule
(2) of r37 within 15 days of the date of the judgment appeal
against.”
Condonation
is not simply granted by virtue of the mere fact that a party has
sought it.
This
was emphasized by ZIYAMBI JA in Zimslate
Quartize (Pvt) Ltd & Ors v Central African Building Society
SC34/17 as follows at p7 of the cyclostyled judgment:
“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.”
The
factors to be considered by the court were outlined by BHUNU JA in
Mzite
v Damafalls Investment (Pvt) Ltd & Anor SC21/18,
where he expressed the following at p2 of the cyclostyled judgment:
“The
requirements for an application of this nature to succeed are well
known as outlined in the case of Kombayi
v Berkout
1988
(1) ZLR 53 (S). These are:
1.
The extent of the delay;
2.
The reasonableness of the explanation for the delay; and
3.
The prospects of success on appeal.”
Condonation
is thus an indulgence granted when the court is satisfied that there
is “good and sufficient cause” for condoning the non-compliance
with the rules.
Good
and sufficient cause is assessed by considering, cumulatively, the
extent of the delay, the explanation for that delay and the strength
of the applicants' case on appeal, or the prospects of its success.
See Bonnyview
Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd & Anor
SC58/18.
APPLICATION
OF THE LAW TO THE FACTS
(a)
The extent of the delay and reasonableness of the explanation
The
applicants ought to have noted their appeal fifteen days after 24
September 2015, being the date the judgment appealed against was
handed down. They were thus required to note their appeal by 16
October 2015.
The
applicants initially noted their appeal timeously on 6 October 2015
but the appeal was deemed abandoned after they failed to pay costs
for the preparation of the record.
From
the time the appeal was deemed abandoned to the time this application
for condonation of failing to note an appeal within the prescribed
time limits and extension of time within which to note an appeal was
filed, a period of three and a half years had lapsed.
Such
a long delay is indeed inordinate, as correctly conceded. Three and a
half years is too substantial a period for a litigant to do nothing.
As
an explanation for the delay, the applicants contend that they failed
to pay the requested costs for the preparation of the record of
appeal because they were unable to secure the necessary funds.
The
reason proffered by the applicants for failure to make an application
for reinstatement of their appeal after it had been deemed abandoned
is because of the wrong advice which they purportedly received from
their legal practitioner.
The
wrong advice of the applicants' erstwhile legal practitioners,
which is pleaded by the applicants, cannot be accepted as a
reasonable explanation. The applicants cannot blame their legal
practitioners of choice for their misfortune.
In
Kodzwa
v Secretary for Health & Anor
1999 (1) ZLR 313 (S) at 317E, SANDURA JA cited with approval STEYN CJ
in Saloojee
and Another v Minister of Community Development
1965 (2) SA 135 (A) at 141C-E wherein the court stated:
“I
should point out however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the blame
lies with the attorney. 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
this Court. Considerations ad
misericordiam
should not be allowed to become an invitation for laxity. In fact,
this Court has been lately burdened with an undue and increasing
number of applications for condonation in which the failure to comply
with the rules of this Court was due to negligence on the part of the
attorney. The attorney after all is the agent whom the litigant has
chosen for himself, and there is little reason why, in regard to
condonation for failure to comply with a rule of court, the litigant
should be absolved from the normal consequences of such a
relationship.”
As
such the applicants cannot seek to escape the consequences of their
actions to timeously note their application for condonation by
blaming their legal practitioner.
It
would have been prudent if the responsible legal practitioner had
filed an affidavit admitting fault and explaining in some detail what
happened, then this Court would be in a position to decide whether
the applicants should not be visited with the sins of their legal
practitioners. See Diocesan
Trustees for the Diocese of Harare v The Church of the Province of
Central Africa
2010
(1) ZLR 267 (S).
The
delay of three and a half years which the applicants took to make a
proper application for condonation of late filing of an appeal is
clearly inordinate and the reason offered by the applicants for such
delay cannot be accepted as a reasonable explanation.
The
applicants submitted that they were prompted to make the present
application because of the success of the Mubvumbi
case which they felt was on all fours with the circumstances of their
case.
Clearly
this reasoning does not justify the granting of condonation because
litigants cannot wait to be prompted by a favourable decision before
they make their own applications.
When
a party brings an unsavoury situation upon himself by taking a
lackadaisical approach to litigation in which he is involved and
showing utter disinterest for a long time, the arrival of the day of
reckoning does not create a calamity in respect of which the court
should drop everything in order to give him audience.
Those
are the consequences of being a sluggard and in the present case the
court is unmoved as it does not ordinarily come to the rescue of the
indolent. See Ndebele
v Ncube
1992 (1) ZLR 288 (S).
The
reasons offered by the applicants for such delay are not sufficient
to enable this Court to grant the applicants condonation and
extension of time within which to note an appeal. The delay is
clearly unjustified and cannot be the kind of delay occasioned by a
party who has a serious intention to prosecute his appeal.
(b)
The prospects of success on appeal
It
is settled that where no acceptable explanation for non-compliance
with the rules has been given, an applicant for condonation must at
least show very good prospects of success. See Mahachi
v Barclays Bank of Zimbabwe
SC6/06.
The
applicants are required to show that they have an arguable case on
appeal as was noted by the court in Essop
v S
(2014) ZASCA 114, where the court stated the following at para 6:
“What
the test of 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.”
It
is settled law that the applicant's case stands or falls on the
founding affidavit. See Austerlands
(Pvt) Ltd v Trade and Investments Bank Ltd & Ors
2006 (1) ZLR 372 (H).
In
their founding affidavits the applicants only alluded to but did not
demonstrate any prospects of success on appeal.
They
just stated that their appeal has bright prospects of success because
it is similar to the Mubvumbi
case which was successful.
That
cannot possibly be a clear and sufficient articulation of prospects
of success and clearly does not satisfy the requirements of the law.
The
applicants could not sit on their rights for years until a favourable
appellate decision was handed down and then claim to be diligent in
pursuing their rights so that they can take advantage of that
favourable decision.
In
any event, the grounds of appeal themselves are afflicted by such
defects that they do not even meet the strict threshold fixed by the
Rules for valid grounds of appeal.
The
grounds of appeal are not clear and concise as is required by r4(1)
of the Rules.
It
is trite at law that grounds of appeal must be clearly set out to
enable the court and the respondent to be fully and properly informed
of the case which the appellant seeks to make out and which the
respondent is to meet. Anything that falls short of that is
improperly before the court. See Econet
Wireless (Pvt) Ltd v TrustCo Mobile (Proprietary) Ltd & Anor
SC43/13.
It
appears from the grounds of appeal that the applicants are aggrieved
by the factual findings of the court a
quo.
It
was stated in Nzira
v The State
SC23/06 that an appeal court is very unlikely to go against factual
findings of the trial court which had the opportunity to listen to
and actually see the witnesses and observe their demeanour when
giving evidence.
The
appeal court will only interfere where it is shown that there was a
clear misdirection on the part of the trial court which has not been
demonstrated in this case.
Considered
cumulatively, the extent of the delay, the explanation for that delay
and the strength of the applicant's case on appeal, it is clear
that the Court cannot extend the indulgence of condonation in these
circumstances and, therefore, this application cannot succeed.
Costs
in this case should follow the outcome, nothing having been
sufficiently advanced to the contrary.
DISPOSITION
Accordingly,
it is ordered that the application be and is hereby dismissed with
costs.
J
Mambara and Partners, applicants
legal practitioners
Chihambakwe,
Mutizwa & Partners,
respondent's legal practitioners
