The Secretary Disciplinary Authority M Matshiya (N O) & 2 Others v Yemen Munyanyi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/368/16
HELD AT HARARE 19 MAY 2016
CASE NO
JUDGMENT NO LC/H/368/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/368/16

HELD AT HARARE 19 MAY 2016				CASE NO LC/H/APP/169/16

& 10 JUNE 2016

In the matter between:

THE SECRETARY DISCIPLINARY AUTHORITY			Applicants

M MATSHIYA (N O) & 2 OTHERS

And

YEMEN MUNYANYI						Respondent

Before The Honourable E Muchawa, Judge

For Applicants			T S Musangwa (Civil Division)

For Respondent		L Rubaya (Legal Practitioner)

MUCHAWA, J:

This is an application for condonation of late filing of an application for leave to appeal.

On 2 October 2015, this court handed down a judgment in favour of the respondent.  It was only on 19 February 2016 that the applicant filed this application before me.

The broad principles to be considered in an application of this nature are settled.  In Jensen v Acavalos 1993 (1) ZLR 216 (SC) these were set out as; the extent of the delay, the reasonableness of the explanation tendered for the delay and the prospects of success on appeal.

I turn to apply these principles to the facts of this matter.

Extent of delay

Rule 36 of the Labour Court Rules provides that an application for leave to appeal should be done within 30 days from the date of the decision.  In casu the applicant had 30 days from 2 October 2015.  Applicant should therefore have filed its application by 13 November 2015.  This application is therefore some 68 days late or 4 months as agreed by the parties.  That is an inordinate delay.

Explanation for the delay

The applicant’s explanation is that the applicants only realised that there was a ground of appeal they could raise in February 2016 and they instructed their legal representatives then, hence the application.

I find for respondent in this.  The applicant was legally represented throughout.  Allowing any litigant to revisit a closed matter and as an afterthought to reopen it after discovering a possible ground of appeal would open a can of worms for the courts and defeat the requirement of bring finality to litigation which the courts consider in such applications.  Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313.

This explanation, where the applicant’s legal practitioner explains that 2nd and 3rd applicant have in-house legal advisers and they are the external legal advisors is akin to saying, “please condone the lack of diligence of a whole team of lawyers.”

This is fitting case to apply the principle set out in Ndebele v Ncube 1992 (1) ZLR 288 that the law will help the vigilant but not the sluggard.

The explanation for the delay is therefore not reasonable.

Prospects of success

The applicant alleges prospects of success on the basis that the court came to the conclusion that the conviction was never the basis of the charge and that this does not apply to the case in casu as the hearing was done in terms of the Public Service Regulations and paragraph 46 (4) allows for this.

This section provides that it shall be competent for the disciplinary authority to find a member guilty of an act of misconduct other than the act which the member was originally alleged to have committed if the facts disclose such other act.

Other than citing paragraph 46 (4) of the Public Service Regulations, the applicant has not demonstrated to me which facts were proved to have been committed and what offence they disclosed other than the acts originally alleged.  Both the founding affidavit and the heads of argument suffer the same fate.  There are no proposed grounds of appeal.  It is therefore difficult for me to assess the prospects of success.

Conclusion

The application for condonation of late filing of application for leave to appeal be and is hereby dismissed for lack of merit.

Civil Division of the Attorney General’s  Office, applicants’ legal practitioners

Mandizha & Company, respondent’s legal practitioners