Mehluli Sibanda v Brian Nyamande N.O. & 3 Ors

### Preamble
Judgment No. SC 94/25
1
Chamber Application No. SCB 118/25
---------


REPORTABLE	(94)

MEHLULI     SIBANDA

v

(1)     BRIAN     NYAMANDE     N.O     (2)     DISCIPLINARY     &     GRIEVANCE COMMITTEE     (3)     KHOLWANI     MANGENA     (4)     CITY     OF     VICTORIA FALLS

SUPREME COURT OF ZIMBABWE

HARARE: 22 AUGUST 2025 & 22 OCTOBER 2025

N. Ncube, for the applicant

T. Nkala, for the respondents

IN CHAMBERS

CHITAKUNYE JA:

[1]   This is an opposed composite chamber application for condonation non-compliance with the rules and for extension of time within which to file an application for leave to appeal in terms of r 46 (1) of the Supreme Court Rules, 2025, and an application for leave to appeal in terms of s 92F (3) of the Labour Court Act [Chapter 28:01].

At the commencement of the hearing, counsel for the respondent abandoned a preliminary point that had been raised on the validity of the founding affidavit.  That abandonment was properly made in the circumstances of this case.

FACTUAL BACKGROUND

[2] 	The applicant is a former employee of the fourth respondent.  The first respondent is cited in his official capacity as the chairperson of the second respondent.  The second respondent is a disciplinary and grievance committee that conducts disciplinary hearings on behalf of the fourth respondent.  The third respondent is employed by the fourth respondent in the position of chamber secretary.

[3] 	The applicant was formerly employed by the fourth respondent as an Accounting Assistant. On 10 July 2023, the applicant was suspended from employment without pay and benefits under the applicable employment code of conduct on allegations that: (a) he had applied for the position of Accountant Budgeting and Reporting officer which was advertised by the fourth respondent to which he tendered a forged Ordinary Level Educational Certificate; and (b) he absented himself from work for a period of more than five working days without authorised leave or reasonable cause.  He was formally charged with fraud in terms of                 s 4(D) (4) and absence from work for a period of five or more working days without reasonable excuse in terms of s 4(D)(5) of the Victoria Falls Municipality Code of Conduct, 2000 (the code).

[4] 	A disciplinary hearing, chaired by the first respondent, was conducted on 16 August 2023. The applicant was found not guilty and acquitted on the charge of absenting himself from work for more than 5 days under s 4(D)(5) of the code but was found guilty of fraud under s 4(D)(4) of the code and dismissed from employment.  He noted an internal appeal which was dismissed.

BEFORE THE COURT A QUO

[5] 	The applicant alleged that in July 2024 he met Zakeyo Nyoni, a member of the disciplinary committee, who informed him of some procedural irregularities that had occurred during the disciplinary proceedings.  As a consequence, on 4 October 2024 he filed an application in the court a quo for the review of the proceedings of 16 August 2023 which resulted in his dismissal.

[6] 	In the application, the applicant alleged that there was gross irregularity in the disciplinary proceedings of the 16th August 2023 in that: (a) the third respondent, who was not a member of the disciplinary committee, participated in advising the second respondent on the appropriate penalty; (b) the committee did not first explore the possibility of consensus before proceeding to vote on the verdict; and (c) there was a deadlock in the vote in which the first respondent, as chairperson, was supposed to exercise a casting vote but he did not do so.

[7] 	The applicant’s argument was that in deciding on both the verdict and the penalty in respect of the charge he was convicted of, the second respondent cast votes which, in his view, was contrary to the Code of Conduct.  The applicant further averred that a 3 to 1 vote cast in respect of both verdict and penalty was a deadlock and the first respondent, as chairperson, was required by the code to exercise his casting vote but he did not do so.  To buttress his arguments the applicant furnished a supporting affidavit from Zakeyo Nyoni.

[8]	All the respondents opposed the application for review by filing opposing affidavits. However, at the hearing in the court a quo, the first and second respondents’ affidavit and supporting affidavits in respect thereof were expunged from the record such that only the opposing affidavits by the third and fourth respondents remained as the only valid opposing affidavits.

[9] 	In her opposing affidavit, the third respondent denied that she had been invited by a member of the disciplinary committee to enter the conference room where the hearing was taking places; (the venue).  She contended that she entered the venue on her own accord mistakenly believing that the hearing was over as she had seen the applicant and his legal practitioner outside.  Her entry was on a separate issue relating to her work as the room was required for use in another unrelated matter.  Upon realising that the committee was still in there she quickly informed the first respondent of the reason for her entry and as she was leaving, Clearance Sibanda, an employee member of the committee, asked her if it was permissible not to dismiss an employee even if he had been found guilty of a dismissible offence to which she responded that they should follow the code and the evidence.  She contended that she did not participate in the deliberations at all.  She further indicated that, as it turned out, at the time she entered the venue the committee had already reached its decisions on both the verdict and the penalty.  She thus averred that the applicant had not shown how he was prejudiced by her entry at a time the committee had already determined his fate.

[10] 	As regards the alleged failure to explore consensus, her position was that the committee would not have acquitted the applicant on the charge of absenteeism without deliberations. The fact that the committee acquitted him of the charge of absenteeism without voting shows that deliberations took place and when no consensus was reached the committee went for voting hence the result of 3 to 1 against the applicant.

[11] 	The fourth respondent’s opposition was to the effect that the applicant’s grounds of review did not show that there was any gross irregularity at all.  The third respondent had entered the conference room mistakenly and, in any case, the committee had concluded its deliberations and had already decided on the penalty.  On the issue of failing to attempt to reach consensus, the fourth respondent agreed with the third respondent’s contention.

[12] 	Regarding the assertion that a deadlock was reached and so the chairperson should have used his casting vote to break the deadlock, both the third and fourth respondents contended that the applicant was ill-informed on the concept of a deadlock as a vote of 3 to 1 is not a deadlock at all.  The majority voted for a verdict of guilty and for the penalty of dismissal.

[13] 	The fourth respondent also averred that the applicant had in fact appealed internally and his appeal was dismissed.  In the process of hearing the appeal the record of proceedings revealed that deliberations were held and consensus was reached finding him not guilty in respect of the charge of absenteeism without resorting to voting.  In the same process consensus was not reached on the verdict for the misconduct of fraud hence voting was resorted to in terms of the code.  In that vote there was no deadlock, as the majority were in favour of a guilty verdict.  On the penalty no consensus was reached hence voting was conducted as well.

[14] 	After a consideration of the submissions, the court a quo dismissed the application for review. In dismissing the application, the court a quo held, inter alia, that the third respondent’s entry into the hearing room was after the committee had already determined the matter in terms of both verdict and penalty.  The entry did not influence the committee in any way.  It also held that given that the entry was after the committee had completed its task in arriving at the penalty to impose, the applicant had not shown that such entry had prejudiced him in any way.

[15]  	As regards the allegation that there had been no attempt to reach consensus before resorting to voting the court a quo held that, it was improbable that in the same hearing the committee could have explored the issue of consensus in respect of the charge of absenteeism and refrained from doing the same in respect of the charge of fraud.  It thus found in favour of the respondents’ contention that consensus was attempted, when it failed the committee resorted to voting as is required by the code.

[16] 	In respect of the assertion that there was a deadlock the court a quo held, inter alia, that a vote of 3 to 1 cannot be declared as a deadlock.  A deadlock implies that there are equal opposing votes and a casting vote is then required to break the tie.  In casu, a vote of 3 to 1 was not a deadlock that would have required the chairperson to resort to a casting vote in respect of both conviction and penalty.

[17] 	The court also reasoned that the evidence of Zakeyo Nyoni had been disputed by the respondents and from the facts of the matter, he appeared to be an interested person.  In that regard, the court held that the evidence of Zakeyo Nyoni could not be held as credible as he was probably angered about losing the vote on the issue of verdict, though he later voted with the majority on the penalty to impose; this is per his own version of the voting pattern.

[18] The court a quo thus concluded that no gross irregularity was established to warrant interference with the disciplinary hearing proceedings.  The application for review was therefore dismissed.

[19] 	Aggrieved by the decision, the applicant applied for leave to appeal to the Supreme Court in the court a quo.  The application was dismissed and this prompted the applicant to file an application for leave to appeal with this Court on 26 June 2025 in terms of s 92F (3) of the Labour Act.  The initial application was, however, struck off the roll for the reason that the applicant had not attached the reasons for the judgment.

PROCEEDINGS BEFORE THIS COURT

[20] 	It is against the above background that the applicant filed the present application after securing the reasons for judgment.  The applicant herein seeks an order that:

The application for condonation for failure to timeously file and serve the application for leave to appeal be and is hereby granted.

The application for extension of time within which to file and serve the application for leave to appeal be and is hereby granted.

The application for leave to appeal the decision of the labour Court under                        LCB 187/24 dated 28 February 2025 be and is hereby granted

The applicant be and is hereby directed to lodge his notice of appeal with the Registrar of the Supreme Court within 10 days of this order

Costs be in the cause.

[21] 	In motivating the application, the applicant’s counsel, Mr Ncube, appreciated that the only aspect of contention related to the prospects of success on appeal.  He accepted that in terms of the law appeals from the Labour Court must be on points of law.  See s 92F of the Labour Act.  He submitted that the grounds of appeal raise points of law.  He submitted that the applicant intends to raise a point of law to the effect that in determining the application before it the court a quo had made reference to affidavits that had been expunged.  In his view, the court a quo erred and misdirected itself in making reference to the expunged affidavits. Counsel was, however, unable to point out any evidence of the court a quo placing reliance on the expunged affidavits.  If anything, counsel appeared to ignore the fact that the third and fourth respondents had also deposed to affidavits in respect of their own involvement challenging the applicant’s averments.  For instance, the third respondent related to aspects regarding her entry into the venue and the fact that this turned out to have been post facto, as the committee had already made its determinations.  The fourth respondent, as the custodian of the record of the proceedings and also the internal appeal process, deposed to the contents of the record of proceedings and the fact that it showed that proceedings had been done in terms of the code.

[22] 	Regarding the issue of a deadlock the applicant’s counsel gave the impression that as long as there was no unanimity, there was a deadlock and the chairperson was required to use his casting vote.  In his view the use of the casting vote did not require to be preceded by a tie in the votes.

[23] 	Per contra, Mr Nkala, for the respondents, submitted that the grounds of appeal were mostly on factual findings and did not raise points of law as required by s 92F of the Labour Act.  In respect of the applicant’s counsel’s submission that they intended to raise a point of law to the effect that the court a quo had made use of the expunged affidavits, counsel submitted that that was not so as the remaining affidavits by the third and fourth respondents adequately covered the issues at hand.  In any case some of the findings made by the court a quo were in sync with what   the applicant and his key witness Zakeyo had deposed to in their affidavits. The key elements the applicant could not overcome related to the prejudice he suffered given the common position that the entry by the third respondent was after the committee had already made its determination and no deliberations were conducted post the entry complained of.

[24] 	Counsel further submitted that a deadlock is reached when there is a tie in the votes and not just because there is no unanimity or consensus as suggested by the applicant’s counsel.  He also submitted that the circumstances show that voting was resorted to because there was no consensus or agreement by members of the committee.  The lack of agreement is evident from the voting pattern.  Counsel submitted that a vote of 3 to 1 is not a deadlock and so there was no need for the chairman to use his casting vote.

[25] 	The   key issue for determination is whether or not the applicant has met the requirements for condonation and the granting of leave to note his appeal out of time.

THE LAW

[26] 	In Mzite v Damafalls Investment (Pvt) Ltd & Anor SC 21/18 this Court reiterated the basic requirements to be considered in an application of this nature in these words:

“The requirements for the application of this nature to succeed are well known as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S).  These are:

The extent of the delay;

The reasonableness of the explanation for the delay; and

The prospects of success on appeal.”

[27] 	The requirements are also stated in Hove v Berea Mining Syndicate SC 50/23, at p 8, as follows:

“It is trite that for an application for condonation for non-compliance with the rules and for extension of time within which to note an appeal to succeed, the applicant should satisfy the court that he or she has a reasonable explanation for the delay and non-compliance with the rules and also establish that there are prospects of success of the appeal.”

Whilst the above case related to an application for condonation and extension of time for late noting of an appeal the requirements apply with equal force to the application for leave to appeal.

APPLICATION OF THE LAW TO THE FACTS

1. Extent of the delay and the reasonableness of the explanation for the delay.

[28] 	The court a quo dismissed the applicant’s application for review on 28 February 2025 without providing reasons for the judgment.  On 3 March 2025 the applicant requested reasons for the decision but these were not forthcoming.  In the meantime, on 17 March 2025 the applicant applied for leave to appeal to the Supreme Court from the court a quo which was dismissed on 3 June 2025.  In terms of r 66 (2) of the Supreme Court Rules,2025 the applicant had ten days to make an application for leave to appeal from this Court after such leave had been refused in the court a quo.  The applicant ought to have filed his application for leave to appeal on 17 June 2025.

[29] 	Faced with a predicament whereby he needed to apply to this Court within 10 days from the date of refusal by the court a quo, yet the reasons for judgment he had requested on                         3 March 2025 had still not been furnished, the applicant approached this Court with an application for leave to appeal.  That initial application was struck off the roll for failure to include the reasons for the court a quo’s judgment.  The order by this Court was then served on the court a quo for it to furnish the reasons for judgement.  That appeared to have worked well as soon thereafter the reasons were then furnished on 3 July 2025.

[30] 	The applicant proceeded to file the present application on 1 August 2025.  The applicant is thus about two months out of time. The delay requires an explanation.  In explaining the extent of the delay, the applicant averred that the reasons for the dismissal of the application for review were not availed by the court a quo in time.  He also averred that the reasons for the judgment were only availed on 3 July 2025 well after the lapse of the 10-day period despite him having timeously requested to be furnished with the reasons for judgment.

[31] 	In Mlambo v Arosume Property Development (Pvt) Ltd SC 35/23, this Court stated as follows:

“It is a common principle of law that has been practiced over time that a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for failure to comply with the rules. This was expressed in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society, SC 34/17 where the court held that:

‘An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction.  He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.  An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.’”

[32] 	The applicant’s explanation is reasonable as this Court could not accept his application without the reasons for judgment.  The applicant had timeously filed the application for leave with this Court and even requested the reasons on 3 March 2025 following the dismissal of the application for review on 28 February 2025.  The reasons were not furnished till after his initial application to this Court was struck off the roll for failure to attach the reasons for judgment.  The court a quo only provided the reasons when the applicant requested them once again attaching this Court’s order striking the matter off the roll for lack of reasons.

[33] 	One of the tenets of a reasonable explanation is candidness.  The applicant was candid and indicated that the reasons were only furnished after he had attached this Court’s order striking his application off the roll and indicating that reasons of the court a quo had to be availed. Clearly there was nothing the applicant could have done to avert being out of time given that the court a quo saw no urgency in providing reasons for its judgment.  The delay, including from 3 July 2025 to 1 August 2025, was in my view reasonable given the circumstances of the case.

[34] 	In any case the respondents did not contest the explanation as they conceded that the delay was not inordinate given the common cause factors and that the explanation was reasonable.

[35] 	The next requirement to consider are the prospects of success of the intended appeal as a reasonable explanation, per se, may not be adequate for leave to appeal to be granted in the absence of prospects of success.

2. Prospects of success.

[36] 	Prospects of success refer to the question of whether the applicants have an arguable case on appeal upon which the appellate court might allow the appeal.  The prospects of success must be reasonable and premised on substance in the argument.  In Essop v S [2016] ZASCA 114, the Court, in defining prospects of success, held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.  In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless.  There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

See also S v McGown 1995 (2) ZLR 81 (S) and Doves Funeral Assurance (Pvt) Ltd v Harare Motorway (Pvt) Ltd & Ors SC 64/23

[37] 	It is trite that the prospects of success of an appeal may be assessed by considering the grounds of appeal against the judgment being appealed against.  This will enable the Court to determine whether there is substance in the argument that there are errors or misdirection made by the court a quo which could warrant this Court’s interference.

[38] 	The four grounds of appeal in the notice of appeal are couched as follows:

1. The court a quo erred in dismissing the application for review when it had expunged the affidavits of the first Respondent and all supporting affidavits thereby relying on the affidavits of the third and fourth respondents who did not traverse the founding affidavit of the Appellant and the verifying affidavit made thereto.

2. A fortiori the court a quo committed a fundamental irregularity in dismissing the application for review in circumstances when the third respondent made a judicial admission of having advised the disciplinary authority on the manner to proceed when in fact, she did not form part of it thereby afflicting the hearing with irregularities.

3. Having accepted that the participation of the third respondent in the proceedings who was not part of the disciplinary committee, the court a quo ought to have granted the application on that score alone. (sic)

Alternatively, the court a quo erred and grossly so at law in finding that the irregularities in the hearing were negligible and not gross in character.

4. The court a quo erred and grossly so at law in making a finding that there was no deadlock on the part of the disciplinary committee’s 3 to 1 vote when such is opposed to a tie and in violation of Clause 2 (b) of the Code of Conduct of the fourth respondent.

[39] 	The overarching question that arises is whether there are any prospects of success in any of the grounds of appeal.  In the first ground the applicant argued that the court a quo erred when it dismissed the application for review relying on expunged affidavits of the first and second respondents and supporting affidavits by Sherina Sibanda and Clearance Sibanda.  It must however, be noted that despite the court having expunged the affidavits of the first and second respondents, the third and fourth respondents had filed their own opposing affidavits which were not reliant on the first and second respondents’ affidavits.  The court could therefore consider the dispute using those affidavits.

[40] 	Further, there is nothing from the record to show that the court a quo relied on the expunged affidavits.  It is clear that the applicant is under the misapprehension that due to the first and second respondents’ affidavits having been expunged from the record inclusive of the supporting affidavits by Sherina Sibanda and Clearance Sibanda, there was no opposition to his application.  This was not the case.  In their affidavits, the third and fourth respondents addressed the founding affidavit of the applicant and disputed the claims therein, hence an opposition was before the court.  There is clearly no arguable case pointing to a possible success of the first ground of appeal.

[41] 	The applicant’s second and third grounds of appeal both impugn the court a quo’s finding that the third respondent’s entrance into the venue for the disciplinary hearing was of no consequence.  The applicant submitted that this was a gross irregularity that the court should not have ignored.

[42] 	In its decision, the court a quo noted that though the third respondent entered into the disciplinary venue, she had entered when the hearing was over and also that her advice to a member of the committee who had asked if it was possible to avoid a dismissal where an employee had been convicted of a dismissible offence, to which she referred him to the code, was not adverse to the applicant and it did not affect the already concluded hearing in any way.

[43] 	It is imperative to note that the court a quo’s finding was premised on the third and fourth respondents’ affidavits in which the story of the circumstances under which the third respondent entered the venue and what transpired therein was told.  The story included that when the third respondent entered the venue determinations had already been made on both verdict and penalty.  The applicant and his witness had both confirmed this position in their respective affidavits.  If, therefore, the proceedings of the second respondent had concluded by the time the third respondent mistakenly entered the venue what prejudice did the applicant suffer or stand to suffer?  Can any alleged prejudice in such circumstances be held to be gross irregularity warranting the Supreme Court’s interference?  The answer to these questions would show that no prejudice was suffered.  The requirement for the applicant to show that he suffered prejudice as a result of such post facto entry was placed at the centre.  Instead of the applicant establishing the prejudice he suffered, if any, he only argued that the irregularity per se sufficed for the setting aside of the proceedings.

[44] 	The applicant lamentably failed to establish the prejudice he suffered as a consequence of the post facto entry at a time the determinations had already been made and no deliberations took place thereafter.  The determinations remained as before the entry.  In this regard at p 4 of its judgment, the court a quo aptly observed that:

“In its heads of argument, the applicant clearly outlines the entry of the third respondent and her utterances that the code and evidence must be considered.  He does not go further to outline how that mistaken entry prejudiced him.  The accidental entry when the third respondent mistakenly assumed that the proceedings had been concluded was an irregularity but can surely not be classified as gross.  In the case of Bromine Capital Solutions (Pvt) Ltd v Nyabvure & Another the court stated that “a mere irregularity will not suffice.” There is no basis to classify the mere irregularity as grossly irregular. “

[45] 	The need for an aggrieved party to show that they suffered prejudice, and the extent of such prejudice, as a result of the irregularity complained of cannot be over emphasised.  In this regard, In Nyahuma v Barclays Bank Zimbabwe (Pvt) Ltd 2005 (2) ZLR (S) at 438E-G, Sandura JA aptly stated that:

“…. I wish to state that it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity, it must be shown that the party concerned was prejudiced by the irregularity.

This point was made by Tindall J in Jockey Club of South Africa & Ors v Feldman 1942 AD 340 at 359 as follows:

‘I am not prepared to accept, as a rule applicable to all cases of irregularity in the proceedings of private tribunals, the proposition that an irregularity which is calculated to prejudice a party entitles him to have the proceedings set aside.  No doubt such irregularity prima facie gives him such right, but if it is clear that in the particular case the irregularity caused such party no prejudice, in my judgment he is not so entitled.’”

[46] 	In casu, the court a quo correctly held that the applicant had not alluded to any prejudice suffered as a result of the irregularity complained of.  Indeed, during the hearing of this application counsel for the applicant was unable to point to any prejudice suffered by the applicant.  Counsel’s submission in this regard was to the effect that the mere entry, albeit harmless, warranted the setting aside of the proceedings.  This is certainly not the position of the law.  It is axiomatic that the second and third grounds of appeal raise no arguable case worth serious consideration by the Supreme Court.

[47] 	On the fourth ground of appeal the applicant’s argument that the court a quo erred and misdirected itself in not finding that a vote of 3 to 1 was a deadlock in terms of the code is rather puzzling.  Section 2 (b) of the Code of Conduct provides as follows:

“The chairman shall be from management and the personnel officer shall do the minuting during proceedings.  He shall not take part in passing the decisions or voting. The decision of the Committee will be by consensus but where there is a difference, members will vote and, if there is a deadlock, the chairman will have a casting vote.” (My emphasis)

[48] 	The section is very clear on the voting procedures of the committee.  The chairman’s casting vote is employed only when there is a “deadlock” as a result of which a decision cannot be reached.  In casu, the disciplinary committee reached a decision on a vote of - 3:1, with the majority finding the applicant guilty of fraud and another 3:1 in favour of the penalty of dismissal.  The term ‘deadlock’ can be defined as “a point in a dispute at which no agreement can be reached.” This means that for a deadlock to exist, there needed to be a vote of 2:2 thereby requiring the chairman to exercise his casting vote to break the tie.  A vote of - 3 to 1 cannot by any stretch of imagination be considered as a point where no decision can be reached or a stalemate.

[49] 	The applicant would, however, want an interpretation to the effect that whenever there is no unanimity or consensus there is a deadlock and the chairman must use his casting vote irrespective of the votes cast.  In counsel’s view a deadlock is reached whenever there in no 100% vote in one direction.  In Prospecting & Investments (Pty) Ltd & Ors 2014 (5) SA 1 (SCA), Malan JA, at para 10, defined “deadlock” as follows:

“The ordinary meaning of ‘deadlock’ is a ‘condition or situation in which no progress or activity is possible; a complete standstill; lack of progress due to irreconcilable disagreement or equal opposing forces” (Own emphasis)

[50] 	It is clear that in the case of a vote, a deadlock is brought about by equal votes; that is a tie. A casting vote is then employed to break the tie or impasse in the vote.  In order to fully understand what a deadlock is, one must equally determine how a “casting vote” has the effect of breaking a deadlock.

[51] 	In Webster’s Universal Dictionary & Thesaurus the term ‘casting vote’ is defined as ‘the deciding vote used by the chairman of a meeting when the votes on each side are equal’. (Bold for emphasis)

That term is also defined in the Cambridge dictionary as:

“A single vote, given by the person in charge of a meeting if the number of votes about something is equal that decides the matter.” (Bold for emphasis)

[52] 	In casu, it is clear that a vote of 3 to 1 was not a tie hence there was no deadlock for which the chairman was required to exercise his casting vote.  The applicant’s argument in this regard was a sheer waste of time.  There is therefore no arguable case in the fourth ground of appeal.

[54]   Clearly there are no prospects of success for which to grant the application. It would be remiss of me to allow such a hopeless matter to proceed on appeal. The application ought to be dismissed.

[55]   There were no reasons advanced for costs not to follow the cause and I find none.

DISPOSITION

[56] 	Overall, therefore though the explanation for the delay was reasonable, the absence of any recognisable prospects of success entails that the application cannot be granted.  It is an exercise in futility to grant condonation in a case where there are no prospects of success at all.  The applicant has dismally failed to establish an arguable case worth placing the appeal before the Supreme Court.

[57] 	In compliance with r 67 of the rules of this Court, the concurrence of two other judges was sought and obtained on the decision to dismiss the application.

[58] 	Accordingly, it is ordered that:

“The application be and is hereby dismissed with costs.”

MAVANGIRA JA	:  	I agree

MWAYERA JA	: 	I agree

Ncube Attorneys, applicant’s legal practitioners.

Dube, Nkala & Company,   respondents’ legal practitioners.