DISTRIBUTABLE (11)

Judgment No. SC 13/06

Civil Application No. 59/04

SIMON MAPENGO v (1) CHITUNGWIZA MUNICIPALITY (2) G. T. MVUDUDU

SUPREME COURT OF ZIMBABWE

HARARE, MAY 16, 2006

H Simpson, for the applicant

H Zhou, for the respondent

Before : ZIYAMBI JA, in Chambers, in terms of r 5 of the Supreme Court Rules.

Application for an extension of time within which to appeal

The judgment against which it is intended to appeal was handed down on 19 November 2003. The history of the matter is as follows:

On 25 February 2004, the applicant noted an appeal against the judgment of the High Court. Notwithstanding the fact that the appeal was out of the time stipulated by the Rules of this Court, the Registrar caused the appeal to be processed and, in terms of rule 43, invited the applicant to file heads of argument.

It appears that Counsel briefed to prepare heads of argument on behalf of the applicant indicated to the instructing attorneys (the date of this advice is not included in the papers) that an application for extension of time within which to appeal should be filed as the notice of appeal did not reflect the date on which the judgment was delivered.

On 5 April 2005, the applicant filed an application for “condonation of late noting of an appeal and an extension of time in which to appeal and for leave to appeal out of time.” The application, which was placed before me did not comply with the rules and I declined to consider it. The present application was filed on 3 November, 2005.

In terms of rule 5 of the Supreme Court (Miscellaneous Appeals and References) Rules 1975, an appeal must be noted within fifteen days of the decision appealed against being given. The reason given by the legal practitioner for not complying with this rule is that it was “an inadvertent oversight and lack of familiarity with the rule”. He was of the view that the time for noting the appeal ran from the date of his receipt of the judgment.

The application is opposed by the respondents. They aver that the time lapse of two years between the date of the judgment and the filing of this application is inordinate and “is such that this application has ceased to be bona fide”. They aver, in addition, that the appeal has no prospects of success.

Further, the respondents aver that the grant of this application would be prejudicial to them since they have reorganized their operations following the judgment of the High Court against which no appeal was filed in terms of the rules. If the application succeeds, the respondents would in all probability have to convene another hearing for which evidence may no longer be available because of the time lapse.

The factors to be considered in determining an application of this nature are, inter alia, the degree of non-compliance (or the extent of the delay) the explanation for it, the prospects of success, the respondent’s interest in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice.

The delay of two years in making this application is no doubt inordinate. The explanation given by the legal practitioner for not noting the appeal on time is unreasonable. Every legal practitioner must be and has a duty to be, familiar with the rules of the court in which he operates. Not to be aware of the rules of the court in which he is briefed to take or defend an action on behalf of his client is to be failing in his duty to his client.

Condonation is an indulgence of the Court and an applicant must make out a case which satisfies the court that there is good and sufficient cause for condoning his non-compliance with the rules.

The prospects of success on appeal, if good, can sometimes influence a court to grant condonation in such cases. However the applicant’s prospects of succeeding on appeal are slim if not non-existent as Mr Simpson who appeared for the respondent was constrained to concede at the hearing.

I must add that no notice of appeal was attached to the application contrary to subrule 3 of rule 31 of the Rules of this Court, the applicant choosing to rely on the ‘initial grounds of appeal’ which expression sheds no light on whether reliance is being placed on the notice of appeal attached to the record of proceedings which contains five grounds of appeal or the defective application which is contained in the record and to which is attached a draft notice of appeal containing six grounds of appeal. However Mr Simpson referred to the 5^th and 6^th grounds of appeal in arguing the matter on behalf of the respondents and it has to be assumed that the defective application was being referred to.

Be that as it may, the consensus at the hearing was that the appeal had little if any prospects of success on appeal.

The judgment sought to be appealed against is a judgment of the High Court dismissing an application for review of disciplinary proceedings conducted by the respondents which resulted in the applicant’s dismissal. The learned judge found no merit in the application and dismissed it. Of the grounds of appeal, Mr Simpson submitted that the fifth and sixth grounds were the most important ones. The fifth he then dismissed as being ‘not a ground of appeal’ but being merely mitigatory.

The sixth ground of appeal (if regard can be had to the defective notice of appeal) was to the effect that the court a quo misdirected itself in not holding that failure by the respondents to accord the applicant representation by the Workers Committee in the proceedings before the board of inquiry rendered those proceedings invalid. Not only was this ground not raised in the High Court and is therefore being raised for the first time in this application but there is no record of the applicant having requested such representation and having been denied it.

Accordingly there are in my view no prospects of success on appeal.

Taking the above factors into account as well as the desirability of finality in proceedings and the prejudice to the respondents arising from the failure by the applicant to prosecute his appeal on time, I am satisfied that there is no merit whatsoever in this application and it is hereby dismissed with costs.

Wintertons, applicant’s legal practitioner

Gill, Godlonton & Gerrans, respondent's legal practitioners