College Lecturers Association of Zimbabwe & 36 Others v Minister of Higher & Tertiary Education, Science & Technology & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/99/2016
HARARE, 2 FEBRUARY 2016 &
4 MARCH 2016
CASE NO LC/H/APP/1345/2015
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/99/2016

HARARE, 2 FEBRUARY 2016 &			CASE NO LC/H/APP/1345/2015

4 MARCH 2016

In the matter between

COLLEGE LECTURERS ASSOCIATION			         APPLICANTS

OF ZIMBABWE & 36 OTHERS

And

MINISTER OF HIGHER & TERTIARY				    1ST RESPONDENT

EDUCATION, SCIENCE & TECHNOLOGY

And

THE CIVIL SERVICE COMMISSION				     2ND RESPONDENT

Before the Honourable L M Murasi J

For the Applicants	  Ms C Mahlangu  (Legal Practitioner)

For the Respondents     Ms L Shambamuto  (Legal Practitioner)

MURASI J:

This is an application for condonation for late filing of an appeal. The facts in this case are largely common cause. The applicants filed an appeal with this court against the decisions of first and second respondents finding the lecturers guilty of misconduct and imposing various penalties. The facts also show that before the appeal could be heard, the respondents raised a point in limine, alleging that the respondents were incorrectly cited. This court, as per KUDYA J, upheld the point in limine and proceeded to strike the appeal off the roll. The applicants wish to pursue the appeal, hence this application.

Ms Mahlangu for the applicants stated that she largely abided by the documents filed of record. It was submitted on behalf of the applicants that even though the delay was inordinate, amounting to some two and a half years, the explanation was reasonable. This was because the applicants were always before the court pursuing their legal rights and the court had even granted an order in their favour despite the defective citation of the parties. Ms Mahlangu urged the court not to dwell on the technicalities raised by the respondents but to use its discretion and allow the matter to be heard on the merits. As far as the prospects of success on appeal were concerned, it was submitted that the applicants had good prospects of success. It was argued that the disciplinary hearings had shifted the burden of proof onto the applicants which was not correct. It was further stated that the disciplinary committees had not clearly established that the applicants were guilty of engaging in a “sit-in”. Ms Mahlangu further submitted that there was an unnecessary splitting of charges levelled against the applicants which may have led to severe punishments being meted upon the applicants.

Ms Shambamuto stated that a plethora of cases has given guidance as to what criteria are to be taken into account in determining such matters. These include the reasonableness of the explanation for the delay, prospects of success, prejudice to the other party and the balance of convenience. It was submitted that the applicants were legally represented and negligence in filing court documents could not be taken as a reasonable explanation for the delay as due diligence was supposed to be exercised by the applicants to cite the correct parties. It was also pointed out that when the error was pointed out, the applicants had insisted in proceeding to amend a nullity. Ms Shambamuto further submitted that the respondents are being prejudiced as a result and have been forced to attend proceedings because of the negligence by the applicants in not making the proper citation of the parties. Ms Shambamuto argued that there were no prospects of success as the applicants were properly found guilty and the respondents properly exercised their discretion in imposing the respective penalties on the applicants. It was also disputed that the respondents had shifted the onus onto the applicants to prove their innocence. It was further argued that the allegation of a splitting of charges was a procedural issue which should be brought by way of review.

It is trite that condonation of failure to file an appeal timeously is an indulgence which may be granted at the discretion of the court. An applicant must satisfy the court that there are compelling reasons or circumstances which justify a finding in his or her favour. Candidness and honesty are important requirements in such applications. Precedent has shown that certain criteria have to be satisfied in the determination of such applications. These include inter alia, the extent of the delay and the reasonableness of the explanation, the prospects of success on appeal, the interest of the court in the finality of the judgments and the prejudice to the party who is unable to execute his/her judgment.

Applying the above principles, the court will proceed to make a determination firstly, whether the explanation tendered is both reasonable and acceptable. The applicants state that the reason for the delay is that they had made an improper citation of the respondents. They said the error was only realised when the respondent raised the issue before the appeal was heard. This appeal had been filed in 2012 and some two and a half years later, that is when the error was brought to their attention. The applicants were then represented by another firm of legal practitioners.

What is noteworthy is that the Founding Affidavit is made by one Nickson Madovi. The said Nickson does not give reasons why the error was made in the first place. The applicants did not attach any affidavit from the erstwhile legal practitioners to explain the error or negligence. Apart from making the mere allegation, there is nothing to demonstrate that the applicants sought an explanation for the negligence from their former legal practitioners. Where a litigant blames their legal practitioner for the negligence, it is necessary for that litigant to avail proof, usually in affidavit form or in writing that the litigant has requested an explanation from the legal practitioner concerned. In casu the applicants have not shown what steps they took in this regard.

Can it be said that the applicants, in the circumstances, have given a reasonable and acceptable explanation? The reasonableness of an explanation is dependent on the circumstances of the case. The applicants’ former legal practitioners did not attend to the detail of examining their papers when they filed them with the court. This lack of diligence led to the matter being struck off the roll. A similar matter concerning the lack of  diligence and negligence came up for determination before GOWORA AJA (as she then was) in K M Auctions (Pvt) Ltd v Samuel & Anor  SC 15-12. In that case the legal practitioner had said that the defect in the notice of appeal had been due to an oversight on his part. The court held that there had been lack of diligence on the part of the applicant and the legal practitioner. It was further held that the court could not continue to be encumbered by applications for condonation caused by a legal practitioner’s tardy performance of his work. It was also held that negligence or lack of attention to detail on the part of the legal practitioner could not be an explanation that the court should find satisfactory. The court stated that there was a limit beyond which a litigant cannot escape the results of his legal practitioner’s lack of diligence or the insufficiency of the explanation tendered. It was emphasized that the legal practitioner is the representative whom the litigant would have chosen and there should be little reason why in regard to condonation the litigant should be absolved from the normal consequences of such a relationship no matter the circumstances of the failure are.

This court has already alluded to the absence of an explanation from the applicants’ former practitioners. The facts show that after the issue was brought to those legal practitioners’ attention, they insisted in proceeding to make an application for an amendment. JUSTICE KUDYA made the following observation when she struck the matter off the roll:

“It is critical to note that the instant matter commenced as far back as 2012 and it did not need the applicant to bring in instant application at the 11th hour where it clearly appreciated the defective nature of its papers. Such an attitude demonstrates lack of sincerity on the part of the applicant.”

Further on the same page of the judgment:

“In fact for that whole stretch that was more the reason why the applicant should have put its house in order in time.”

The erstwhile legal practitioners’ explanation for the defect is not before the court. To enable this court make a determination as to the reasonableness of the explanation it was indeed incumbent on the applicants’ to favour the court with such explanation. This the applicants did not do. I therefore am of the view that the explanation tendered by the applicants is not reasonable. It is thus not acceptable.

I now turn to the issue of prospects of success on appeal. The applicants were arraigned before disciplinary committees and found guilty and respective penalties were meted out to the applicants. The court has gone through the record and read the minutes of the proceedings leading to the convictions. At Mkoba Teachers’ College the hearings were chaired by P Mavhondo and the lecturers were represented by a legal practitioner named Walter Chikanda. Apart from the Principal of the College, other witnesses also testified. At Morgester Teachers’ College, the hearings were chaired by I N Kajengo and again Mr Walter Chikanda represented the College lecturers. The Principal and the Vice Principal were called as witnesses. In respect of Bondolfi Teachers’ College, Mr F T Kanyowa chaired the hearings with Mr Walter Chikanda representing the College lecturers and the Acting Principal was called to testify. At Masvingo Teachers’ College, Mr G.M. Chabururuka chaired the hearings with Mr Walter Chikanda representing the college lecturers. The Principal, Mr Masarira was called to testify during the hearings.

A reading of the record shows one common thread to the hearings. This was that members of COLLEGE LECTURERS ASSOCIATION OF ZIMBABWE (COLAZ) approached the Principals of their respective institutions with a Memorandum informing the said Principals of the impending “sit-in” by members of the association. The evidence which is common to all the hearings is that following the presentation of this Memorandum, the College lecturers did not attend to their duties. The court also noted that the evidence of the Principals and Acting Principals was basically similar in respect of the respective hearings. Principals gave evidence to the effect that no lectures were conducted during the period in question. In certain instances, scheduled programmes had to be postponed because of the “sit-in”. An example was an RBM workshop which was scheduled to be held at Bondolfi Teachers’ College. This had to be cancelled as the college lecturers stated that they would not participate because of the “sit-in”. At page 134 of the record the acting Principal states that the conveners of the RBM workshop tried to convince the college lecturers to attend the workshop, but they refused.

The question that arises is whether the hearing officers were entitled to convict on the basis of the evidence adduced. It is also a truism that the applicants should demonstrate that the decision arrived at was so irrational that a reasonable panel exercising its mind would not have arrived at such a decision. The respondents were bound to prove the cases on a balance of probability. What is a balance of probability? Courts have occasionally had to point out that evidence does not have to be accepted merely because it is un-contradicted. What is being weighed on the “balance” is not quantities of evidence but he probabilities arising from that evidence and all the circumstances of the case. KOTZE JA had this to say in West Rand Estates Limited v New Zealand Insurances Co Ltd 1925 AD 245 at 263:

“It is not a mere conjecture or slight probability that will suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it. It must be of sufficient weight to throw the onus on the other side to rebut it.”

I have already alluded to the fact that all the heads of the Teachers’ Colleges concerned were served with a Memorandum that members of COLAZ were going to embark on a “sit-in”. The same Principals gave evidence during the disciplinary hearings that following that notice from COLAZ, no lecturers were conducted. Evidence was also given by the Principals of their personal involvement in discussions with the applicants concerning the “sit-in” they were engaged in. There were no denials by the applicants that the Principals were served with the notice of “sit-in”. Can it be said that the decisions of the hearing committees were irrational in the circumstances? I think not. It is my view that the events and the evidence showed a clear intention by the applicants to engage in a “sit-in”. It is trite that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection on the part of the lower court or tribunal. In Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S) GUBBAY CJ (as he then was) had this to say:

“These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion.”

It is my view that the decisions of the hearing committees are unassailable. In fact the applicants have not demonstrated that the decisions arrived at are irrational.

This brings me to a matter raised by the applicants’ Counsel that the respondents shifted the burden of proof to the applicants. To this end, the court was referred to sections of the record where individual applicants were asked to prove that they had actually done the work they had purported to do. The applicants’ counsel lost sight of the fact that in all the hearings the Principals had given evidence first showing that a particular applicant had not performed the requisite duties on a particular day. It was after the evidence of the Principals that these applicants had alleged that they had performed certain tasks. The hearing committees then asked them to “prove” such evidence. In short, the hearing committees were asking these applicants to provide evidence controverting the evidence given by the Principals. In other words, they were asked to provide proof and not merely make allegations without any foundation. This did not amount to shifting the burden of proof. As stated in the West Rand case supra, the respondents had given evidence which was of such a nature that it “threw the onus on the other side to rebut”. The applicants were being asked to rebut the evidence given by the respondents and not that the burden of proof was shifted to the applicants.

The applicants have raised another point as regards the fact that no mitigation was recorded from the applicants. The respondents’ counsel conceded that she could not find anywhere in the record where mitigation was taken from the applicants. The applicants were given varying penalties. It is also correct that the respondents were enjoined to record aspects of mitigation from the applicants. A reading of the record shows that the applicants’ penalties varied in severity in the amounts imposed and the others were subjected to transfers. Under the heading “Findings” the hearing committees would detail the respective member’s degree of participation and the appropriate recommendation. This shows that the hearing committees took into consideration the gravity of the offence as related to each applicant’s participation in the “sit-in”. It is also clear, that the applicants’ personal circumstances are not recorded as having been taken into account. Whilst it must be admitted that the hearing committees should have recorded the personal mitigation of the applicants, can it be said that the sentences imposed on the applicants are clearly irrational taking into account the nature of the offence they were charged with? Would it be necessary at this belated stage, some four years later to know whether the existing personal circumstances (at the time) would have led to a different sentence being imposed on the applicants? In other words once it is established that the decision to find the applicants guilty was properly made, the question arises as to what justification could there be to alter the past, that is, altering what is judicata only in order to make life easier for the applicants. There should be finality in litigation and no meaningful purpose will be served in harping on the issue of unrecorded mitigation when the record clearly shows that real and substantial justice was handed down in the disciplinary hearings.

In conclusion, the court is of the firm view that the explanation tendered in the application for condonation is not reasonable and thus unacceptable. There are no prospects of success on appeal.

In the result the application for condonation for late noting of appeal is accordingly dismissed with no order as to costs.

Munyaradzi Gwisai & Partners, applicants’ legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners