Oswald D. Mushayabasa v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/190/2021
HARARE, 21 SEPTEMBER 2021
CASE NO. LC/H/222/21
JUDGMENT NO LC/H/190/21
---------




IN THE LABOUR COURT OF ZIMBABWE   JUDGEMENT NO. LC/H/190/2021 HARARE, 21 SEPTEMBER 2021     	      CASE NO. LC/H/222/21

AND 22 OCTOBER  2021

In the matter between: -

OSWALD D. MUSHAYABASA                                                APPLICANT

And

MINISTER OF PRIMARY AND 					1ST RESPONDENT

SECONDARY EDUCATION

And

PUBLIC SERVICE COMMISSION 			     	2ND RESPONDENT

Before the Honourable B.T Chivizhe: Judge

For Applicant:				 In Person

For 1st and 2nd Respondent:		 Mr L.T. Muradzikwa (Civil Division)

CHIVIZHE, J:

This is an application for condonation of the late noting of an appeal.  The Applicant wishes to appeal against a determination made by the Public Service Commission – 2nd Respondent on 12 January 2011 turning down his application for review of the decision made by 1st Respondent.

The material background facts to the matter are as follows.  The Applicant was employed by the 1st Respondent as a District Education Officer stationed in Manicaland.  He was charged with improper, inefficient and incompetent performance of duty sometime in 2009.  He was arraigned before a Disciplinary Committee and was found guilty of the charge.   A penalty was subsequently imposed which included, inter alia, demotion, transfer and a penalty of a fine of $50.  The Applicant was aggrieved with the determination.  He sought a review of the determination by his employer before the 2nd Respondent.  The review application was turned down by 2nd Respondent through a letter dated 12 January, 2011.  This is the determination that Applicant seeks to challenge before this court.  Because however the challenge is being brought out of time he has filed the present application for condonation.

What is the approach a court ought to take in such an application? The approach the court should take has been laid down in a plethora of cases, including Bessie Maheya vs Independent Africa Church SC 58/07.  In that case the court stated as follows

“In considering applications for condonation of non – compliance with its Rulers, 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; the degree of non- compliance; the explanation therefore; the prospects of success on appeal: the importance of the case; the Respondent’s interests in finality of the judgment; the convenience to the court and the avoidance of unnecessary delays in the administration of justice (my own underlining)“

It is also important to underline the further principles of law that are applicable which were restated in United Plant Hire (Pty) vs Hillo & Others 1976 (1) SA 717 720 F-  G as follows:

“It is well established that, in considering applications for condonation, the court has the discretion to be exercised judicially upon a consideration of all the 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 therefore, the prospects of success ………(on the merits) the importance of the case, the Respondent’s interest in 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 interlated decisive and must be weighed one against the other; thus a on slight delay and a good explanation may help compensate for prospects of success which are not strong”

APPLICANT SUBMISSIONS

The Applicant, through his 	Founding Affidavit and Heads of Argument contends that although the application is being brought well out of time he has a reasonable explanation for the delay.  He submits that after receiving the letter from the Public Service Commission dated 12 January 2011 he entered into negotiations with his employer with a view to possible settlement. He approached the Ministry again in 2011 and also made numerous follow ups on his case.  He submits that it was only on the 25 November 2020 that he was told to approach Ministry of Labour.  It was at the Ministry of Labour that he was then advised that his recourse lay in an appeal with the Labour Court.  The Application further submits that whilst the period of delay may seem excessive the court should find his explanation to be reasonable in that he had to explore first the verbal engagement with his employer.   It was only upon realising that his employer was negotiating in bad faith that is when he then opted to approach this court with his appeal.

With regards to prospects of success the Applicant submits that his intended appeal carries huge prospects of success. He believes that he was improperly charged for executing a duty and making a decision in line of his duties.  He submits that he executed his duties in line with the procedures outlined and his actions were even approved by his superiors.

RESPONDENTS SUBMISSIONS

Point in limine

The Respondent through its papers had taken a point in limine that the application before court failed to comply with the law in that the Founding Affidavit attested to by the Applicant was not commissioned by a Commissioner of Oaths.  The court had been urged to, on that basis alone, strike off the matter as there was seemingly no proper Founding Affidavit in the application before the court.  On the date of hearing the Respondent counsel persisted with the point in limine.  After hearing arguments, the court adjourned the hearing to prepare a ruling on the point.  During the period that Applicant was able to obtain the particulars of the Commissioner of Oaths which he sought to place before the court.  The Respondent counsel, initially after objecting to the procedure adopted conceded to the placing of the additional evidence in the record.  He consequently withdrew the point in limine .

On the merits, Respondents Counsel submitted that the application before the court stood to be dismissed for its lack in merit. He emphasised on the excessive period of delay which amounts to ten (10) years. He submitted that courts generally frown against applications for condonation brought after such a long period. To compound the situation the Applicant had also failed to place before the court any convincing reason for the inordinate delay in filing his appeal with the court.  Respondent Counsel also emphasised that the Applicant in seeking for condonation the court had placed reliance on attachments 1- 17 which attachments were however not relevant to the present matter as they had been prepared by Applicant erstwhile legal practitioners –i.e.  Gonese and Ndlovhu Legal practitioners.  They were related to an application for review and not to the intended appeal before the court.  It was counsel’s view that in view of this position the court had to find there was no explanation tendered before the court for the inordinate delay in seeking condonation.

On the issue of prospects of success Respondents Counsel submitted that the Applicant had very poor prospects of success in the intended appeal.  He had been charged with improperly, inefficiently and incompetently performing his duties.  Upon his conviction on the charge he had proceeded to the penalty imposed i.e. through a demotion, transfer and deduction of $50 from his salary.  He had further proceeded to serve his employer until he retired in 2016. Against this background the Respondent clearly stood to be prejudiced were the court to grant condonation in order to resuscitate the intended appeal.  On this basis the Respondents prayer was for dismissal of the application for condonation with costs on a higher scale.

RULING

The principles that guide the court in determining this application have been alluded to above.  It is very clear that based on the authorities as referred to above the Applicant has failed to overcome the first hurdle in order for him to be condoned.   There is no doubt that a period of 10 years delay is an inordinate period.  The Applicant has also failed to place before the court a plausible reason for the delay in noting his appeal.  It is a fact that he received the determination from Public Service Commission in 2011.  He has sought to explain the delay by stating that he was engaged in an out of court negotiation with his employer and filing an appeal in such circumstances would have amounted to him negotiating in bad faith.  He also submits that he did not want to conduct dual proceedings.  It was only in 2020 after he realised that his former employer was negotiating in bad faith that he had taken the option to appeal.

The explanation tendered by Applicant is far from being a reasonable explanation.  It is in essence a flimsy exercise.  The Applicant has not placed before the court any evidence to show that there was any negotiation between him and his former employer.   It is also practically impossible for such a negotiating process to have taken such a protracted period of ten years?  It is also important to note that the Applicant had in the meantime continued to serve until he reached retirement age in 2016.  It clearly ought to have become apparent at some stage to Applicant that the negotiation would not yield positive results.  To wait 10 years in order for the employer to see his point of view is just unbelievable.  The Applicant has intimated that he was during the period constantly following up on his matter with his employer.  Nothing however has been placed before this court to convince the court.  A litigant that is seeking the indulgence of the court has to take the court in his confidence by ensuring that all the relevant facts and circumstances relating to the delay are disclosed to the court.  The Applicant has failed dismissally in this respect.

Having established that the Applicant explanation for the inordinate delay in not only seeking to file an appeal but in also seeking condonation for the late noting of the appeal is poor it is trite law that in a matter concerning flagrant flouting of the rules, the indulgence of condonation may be refused whatever the merits of the intended appeal.  See PE Bosman Transport Workers Committee & Others vs Piet Bosman Transport (Pvt) Ltd 1980 SA 799.  I am however compelled to consider all the other requirements in an application for condonation as outlined in the Struterfords Removals vs Nyamazuzu SC 40/20

In regards prospects of success   the Applicant intended grounds of appeal as captured in the Draft Notice of Appeal are two.  They read as follows;

“1. 1. The Commission erred in failing to estabilisation the Appellant was charged for exercising a duly and making a decision in the line of duly.

1.2 The Commission failed to note that the Appellant followed all procedures inn exercising his duties and has decisions were subject to apprared by superiors and they were duly apprared.”

The Applicant intended grounds of appeal are attacking the decision of the Public Service Commission in that the Commission failed to find that Applicant was improperly convicted on the charge as he had followed all the procedures in executing his duties and secondly that his superiors had even approved of his conduct.

The Appellant in seeking to convince the court on his prospects placed reliance on the documents marked as Annexure 1 – 17 of his application.  It is important to note however as submitted by Respondent that those documents refer to correspondence between his erstwhile legal practitioners and the Civil Service Commission as well as with Public Service Commission.  The documents relate to the review application that was eventually placed before 2nd Respondent.  Being a review application applicant premised his arguments on alleged procedural irregularities and violation of his right to be heard.  The Applicant however intends to file an appeal before this court.  He cannot rely on those same papers to justify his appeal.  His grounds of appeal have also not been elaborated upon before this court.   The Applicant has thus clearly failed before this court to demonstrate his prospects of success on the intended grounds of appeal.

It is also very clear that there is a reasonable likelihood of prejudice to be suffered by the Respondent in this case. The facts disclose that Applicant retired form service on 27 January 2016.  No convincing reason has been tendered by Applicant for seeking to overturn and appeal a decision which was made whilst he was still in service and when it is now five years after his retirement.  This is a classic case where the principle of law as stated in Ndebele vs Ncube 1992 (1) ZLR 288 ought to apply i.e. that the law will help the vigilant but not the sluggard.

In a case where all the requirements of an application for condonation have not been satisfied the interests of justice clearly favour the dismissal of this application.  It is accordingly ordered as follows.

The application for condonation for late filing of an appeal be and is hereby dismissed with no order as to costs.