Shadreck Chatunga v Ministry of Education Sports and Culture & Anor

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/181/2013
HELD AT HARARE ON 04 APRIL, 2013              CASE NO. LC/CON/ H/91/2012
In the matter between



SHADRECK CHATUNGA                                       – Applicant
And

MINISTRY OF EDUCATION SPORTS AND CULTURE                – 1ST Respondent

And

THE PUBLIC SERVICE COMMISSION                      - 2ND Respondent




Before The Honourable L. Matanda-Moyo, President



(IN CHAMBERS)


MATANDA-MOYO, L.

      This is an application for condonation for late noting of appeal.    The

Applicant was found guilty in terms of section 46 (1) (b) of the Public Service

Regulations SI 1of 2000 and dismissed from employment with effect 23 October

2011. He received the determination around 20 October 2011. Applicant was

enjoined to note his appeal within 21days of receipt of the determination. He

only filed this application on 1 June 2012 almost 8months after having

knowledge of the determination.



      For such an application to succeed Applicant must reasonably explain his

delay and show that there are good prospects of success on appeal. In Bishi vs
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Secretary for Education 1989(2) ZLR 240(H) the court found that the court has

to look at the following;

      a) The length or extent of the delay,

      b) The cause of the delay and the explanation given for such delay,

      c) The importance of the issues to be raised on appeal,

      d) Whether there are prospects of success on appeal and

      e) The potential prejudice to the other party and whether the interests of

          justice and fairness favour the granting of the order. The list is not

          exhaustive. See also Kumbirayi vs Berkhaut 1988(1) ZLR 93(S) and

          Hama vs NRZ 1999(1) ZLR 664.



      Applicant’s appeal was filed out of time that is 8months late. Applicant

explained that he briefed a legal aid society. Applicant does not state which

legal aid society he briefed. Applicant simply sated that he only learnt after

8months that no appeal had been lodged and he immediately sought

alternative legal assistance. The question to be determined by this court is

whether such explanation for the delay constitute reasonable explanation. It

has been decided in a plethora of cases that the law helps the vigilant. From

Applicant’s explanation his reasons for the delay are not reasonable. Surely it

could not take Applicant 8months to know that his appeal had not been lodged.

Moreso after Applicant’s submission that he vigilantly following on the appeal.

8months delay is inordinate.



      Let me proceed to look at Applicant’s prospects of success on the main

appeal. Applicant submitted that his prospects of success on the main appeal

are good. Applicant submitted that the Headmaster refused to tender evidence


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which showed Applicant’s movements during the preparations of the trip.

Applicant does not state which evidence the Headmaster withheld. He also

failed to state why he did not himself provide such information.      Applicant

complained that he raised certain facts during the trial which factors were

ignored during the determination. Again he does not state what factors were

ignored and how such factors could have exonerated him.          Applicant also

submitted that the matter was heard out of time.        Applicant does not say

whether he raised the point during the proceedings or not. In the case of

Watyoka vs Zupco 1999(2) ZLR 10 the court held that once the Respondent

acquiesced to the matter being heard by a Labour Officer the issue of delay fell

away. Equally the Applicant herein agreed to have his matter determined by the

Respondents. He can then not on appeal raise issues of delay. By agreeing to

proceed with the hearing the Applicant condoned any delays that may have

occurred.



      An application of this nature succeeds or falls on the founding affidavit.

The affidavit of the Applicant fails to show that he has prospects of success on

appeal.     Applicant merely alleges that the Disciplinary Authority ignored his

submissions but failed to show the submissions ignored and their subsequent

relevance to the charges faced by the Applicant.



      This court is overburdened with so many appeals and the convenience of

the gcourt favours not granting the application.        The Applicant failed to

discharge the onus on him of proving that his prospects of success on appeal

are good.




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Accordingly the application for condonation for late noting of appeal fails and is

dismissed with no order as to costs.




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