Willbrought Muleya V National Prosecuting Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 27 MAY 2025
JUDGMENT NO. LC/H/198/25
CASE NO. LC/H/270/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 27 MAY 2025

JUDGMENT NO. LC/H/198/25 CASE NO. LC/H/270/25

IN THE MATTER BETWEEN:-

WILLBROUGHT MULEYA	APPLICANT AND

NATIONAL PROSECUTING AUTHORITY	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For the Applicant	Mr. C. Mudenda

For the Respondent	Mr. T.R. Zvekare

MURASI J.,

This is an opposed application for condonation for the late noting of an appeal against the determination of a Disciplinary Authority. The application is brought in terms of Rule 22 of the Labour Court Rules, 2017.

FACTUAL BACKGROUND

The applicant is employed by the National Prosecuting Authority of Zimbabwe. He was subjected to a disciplinary hearing conducted by the respondent at the Plumtree Magistrates Court between the 22nd and 23rd of August, 2024. The charges against the applicant stemmed from allegations of unbecoming conduct, specifically the appearance of obscene images of the applicant on social media, which were deemed offensive and damaging to the integrity of the prosecuting authority. It was further alleged that he had kept offensive material on his mobile device. Following a full hearing, the applicant was found guilty of keeping and storing offensive images. The Disciplinary Authority issued its determination on the 3rd of December, 2024, imposing a penalty of a reprimand. Upon receipt of the decision, the applicant allegedly attempted to contact his legal

practitioners based in Bulawayo, but his efforts were unsuccessful. Consequently, he engaged alternative legal practitioners who, on the 28th of January, 2025, requested the record of proceedings from the respondent. The requested record was made available on the 10th of February 2025. After receiving the record, the applicant, acting on legal advice, resolved to lodge an appeal. However, recognising that the time for noting the appeal had lapsed, he filed the present application for condonation.

SUBMISSIONS BY THE PARTIES

Applicant’s submissions

At the commencement of the hearing, Mr. Mudenda indicated he would abide by the documents filed of record. He submitted that the delay in casu amounted to 54 days, excluding weekends in his calculation. He further contended that the delay cannot be regarded as unreasonable under the circumstances as the applicant was making efforts to communicate with his previous legal counsel during the material period. He referred to case authorities suggesting that, even where the explanation for the delay is inadequate, strong prospects of success may justify condonation.

Regarding the prospects of success, Mr. Mudenda argued that the Disciplinary Authority erred by relying on evidence that had not been disclosed to the applicant prior to the hearing, thus violating the National Prosecuting Authority Regulations. The Court asked whether this concern had been raised before the Disciplinary Authority. Counsel conceded that it did not appear on the face of the record. When asked about the nature of the police report, counsel explained that the applicant had seen his private pictures circulating on social media and suspected his phone had been hacked. He claimed the photos, while private, were not obscene. Counsel further argued that there was no evidential basis linking the explicit images to the applicant's phone or establishing a connection between the applicant and the device from which the images were allegedly disseminated. Mr. Mudenda further submitted that the Disciplinary Authority had erred by shifting the burden of proof to the applicant. On the above arguments, he stated that the intended appeal enjoys good prospects of success.

Respondent’s submissions

In response, Mr. Zvekare submitted that he would abide by the documents filed of record. He argued that the delay of over two months in filing the appeal was inordinate and inadequately

explained. He contended that the explanation provided was that the applicant was consulting with his former lawyers was unsubstantiated and unsupported by evidence in the form of a supporting affidavit. Mr. Zvekare further submitted that the application was devoid of merit due to the lack of prospects of success. He argued that the findings of the Disciplinary Authority were reasonable and well-grounded, making them unlikely to be overturned on appeal. He noted that appellate courts are generally reluctant to interfere with factual findings of a lower court unless they are shown to be grossly unreasonable, which was not the case here. Counsel characterized the applicant’s claim that witnesses were threatened as vague, unsupported, and amounting to a mere afterthought. Regarding the alleged improper admission of evidence, he pointed out that the applicant had made a police report acknowledging the dissemination of private photos from his phone, which was corroborated by a police officer’s testimony. The disciplinary authority had accordingly issued a reprimand, recognizing that although the applicant may not have actively shared the images, they had emanated from his phone and they had entered the public domain. The Court inquired whether counsel had personally reviewed the images in question. Mr. Zvekare confirmed that he had and described them as pornographic, depicting the applicant naked with different women. He emphasized that the applicant had not denied the existence of the photos and that their authenticity was therefore not in issue.

In reply, Mr. Mudenda denied that there had been an admission by the applicant regarding the possession of the explicit images. He stated that the applicant had only identified and acknowledged the non-obscene images in his defence outline. The Court pointed out that the draft notice of appeal did not challenge the penalty imposed. Mr. Mudenda confirmed that the appeal was against conviction only and argued that, should the conviction be set aside, the penalty would fall away by implication.

ISSUE FOR DETERMINATION

Whether the applicant has satisfied the requirements for an application for condonation for the late noting of an appeal and whether there are any prospects of success on appeal?

THE LAW AND ANALYSIS

It is trite that condonation is not granted as a mere formality. It has been reiterated in many a precedent that a litigant seeking condonation must set out in some detail the extent of the delay,

provide a full, reasonable, and acceptable explanation for it, and demonstrate prospects of success on the intended appeal. See Lunat v Patel SC 47-22 at p. 5. In casu, the fundamental aspect of the tendered explanation is presented in paragraph 8 of the founding affidavit, where the applicant avers as follows, and I quote:

“The delay was occasioned by my circumstances that I would travel from Beitbridge to Bulawayo to locate my legal practitioner who attended to the hearing on numerous occasions for further instructions but could not locate him in most cases due to his other commitments outside Bulawayo. Having realized the passage of time, I had to engage my current legal practitioner and instructed them to request for the record…”

A reading of the above excerpt shows that the founding affidavit is significantly lacking in detail. The applicant’s explanation for the delay is both incomplete and unconvincing. He merely states that he made attempts to engage his previous counsel by travelling between Beitbridge and Bulawayo. However, in oral submissions, Mr. Mudenda submitted that communication between the applicant and the erstwhile legal practitioner had occurred via telephone and that appointments were made. Counsel failed to explain why those efforts occupied over two months. Compounding the weakness of this explanation, the Court highlighted the lack of a supporting affidavit from the said legal practitioner to corroborate the averment that the applicant had made efforts to engage with him. Mr. Mudenda conceded that no such affidavit had been submitted. The respondent's counsel argued that without such an affidavit, the applicant's claims remain ‘bald assertions’. I concur with this viewpoint.

In Rio Zim Limited v Dixon & Anor SC 21-23, the Supreme Court expressed the following sentiments:

“Further, having blamed the legal practitioner for its failure to comply with the rules, the applicant failed to furnish this Court with a supporting affidavit of the legal practitioners concerned. In this regard see Diocese of Harare v The Church of the Province for Central Africa SC-9-10. The applicant’s explanation cannot therefore be adequate in the absence of a supporting affidavit from the legal practitioner who is blamed for the non-compliance with the rules.” (My emphasis)

In light of the above authority, the applicant has not provided a reasonable or acceptable explanation for the delay in noting the appeal. He has failed to take the Court into his confidence by setting out a detailed and candid account of the events that transpired during the period of delay. As alluded to earlier in this judgment, the absence of a supporting affidavit renders the explanation for the material period of the delay non-existent. Further, during oral submissions, the Court

inquired into the applicant’s professional background. Counsel confirmed that the applicant holds a Bachelor of Laws Honours degree. This fact significantly undermines the applicant’s position. As a trained legal professional, the applicant is presumed to possess substantive knowledge of procedural rules, including timelines for filing appeals and the implications of non-compliance. It is therefore inexplicable and unreasonable that he would spend over two months attempting to physically engage legal representation. It is safe to conclude under the circumstances that the applicant's inaction, coupled with a lack of urgency throughout the relevant period, demonstrates a disregard for the rules of this Court. Given this woeful deficiency, the application falls squarely within the principle that condonation may be refused even in the face of prospects of success which was articulated in the case of P E Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799 D-E, wherein MULLER JA in stated the following:

“In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.” My emphasis

Similarly, in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 at 316 of the judgment, SANDURA JA had the following to say:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the prospects of success…”

It is my considered view that the above authorities apply with equal force in the present matter. Having found that the applicant has failed to furnish a reasonable and acceptable explanation for the delay, it is unnecessary to consider the prospects of success. However, for the sake of completeness, I shall briefly address this aspect. I hasten to add that, much like the explanation for the delay, the applicant’s prospects of success are tenuous at best. In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S), the Supreme Court held that an appellate court will only interfere with the factual findings of a lower tribunal if they are grossly irrational such that no other person confronted with the same set of facts would come to a similar conclusion. The intended grounds of appeal, as presented, do not raise any arguable point warranting the intervention of an

appellate court. The first prospective ground challenges the admission of evidence that the applicant claims was not disclosed prior to the hearing thereby contravening the governing regulations. This submission is without merit. The record reveals no objection having been raised at the disciplinary hearing in this respect, or that the issue itself was ever canvassed before the tribunal a quo. It is settled in this jurisdiction that an appellate court is confined to the four corners of the record in making its determination. See Reserve Bank of Zimbabwe v Granger & Anor SC 34-01. Accordingly, this ground of appeal is struck off for advancing extraneous issues.

The third prospective ground alleges that the Disciplinary Authority improperly shifted the burden of proof to the applicant. This contention is equally unfounded. The record shows that the authority relied on the evidence of a police officer who testified concerning a report voluntarily made by the applicant. That report indicated that private images of the applicant had been extracted from his mobile device and disseminated online. The explicit images that were shared online depicted the applicant himself in compromising positions with other individuals. Further, other witnesses were called, evidence was presented, and conclusions were drawn based on the strength of that evidence. The applicant was clearly not required to prove his innocence. On a balance of probabilities, which is the applicable standard of proof in disciplinary proceedings, the conclusion that the images originated from the applicant's device was not only reasonable but inescapable. The applicant's assertion that forensic evidence should have been obtained to demonstrate that the photographs originated from his phone is at odds with the burden of proof in a civil case, which is based on a balance of probabilities. Consequently, this finding also effectively renders the second intended ground unassailable. Thus, the Disciplinary Authority’s decision cannot be faulted.

The fourth ground relates to the alleged intimidation of witnesses. Here again, the argument falters. The founding affidavit, particularly on paragraph 14, makes reference to multiple witnesses having been threatened. However, during oral submissions, counsel narrowed the claim to a single witness. Upon inquiry, it became apparent that only one witness was allegedly ‘pressed’. This inconsistency renders the averments in the founding affidavit misleading and undermines the integrity of the entire allegation. It also does not assist the applicant that there is nothing on the face of the record that substantiates that any of the witnesses were coerced. It follows that this ground of appeal is factually defective and lacks credibility. Accordingly, the intended appeal discloses no reasonable prospects of success. The findings of the disciplinary authority were based

on credible evidence, supported by logical reasoning, and in accordance with the applicable standard of proof. There is no basis upon which this Court could justifiably interfere with those findings.

Given the circumstances outlined above, I deem it crucial to stress that litigation should reach a conclusion. As articulated in Ndebele v Ncube 1992 (1) ZLR C 288 (S) at 290C-E:

‘It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But it must be observed that in recent years, applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt - roughly translated, the law will help the vigilant but not the sluggard.’"

In this matter, the applicant failed to act vigilantly. He has not provided a reasonable or acceptable explanation for the delay, and his prospects of success are, at best, remote. The Court is therefore not inclined to exercise its discretion in his favour.

DISPOSITION

In the result, the Court makes the following order.

The application for condonation of the late filing of a notice of appeal, being devoid of merit, be and is hereby dismissed.

There shall be no order as to costs.

Manase and Manase - Applicant’s Legal Practitioners

National Prosecuting Authority of Zimbabwe- Respondents’ legal practitioners.