Court name
Supreme Court of Zimbabwe
Case number
SC 69 of 2002
Civil Appeal 65 of 2001

Nyamande v Director of Pensions and Another (65/01/01) (SC 69 of 2002, Civil Appeal 65 of 2001) [2002] ZWSC 69 (06 October 2002);

Law report citations
Media neutral citation
[2002] ZWSC 69



















Judgment
No. SC 69\2002


Civil
Appeal No. 65\01














JUDITH
SCHOLASTIC NYAMANDE v (1) THE DIRECTOR OF
PENSIONS (2) THE SECRETARY OF PUBLIC SERVICE

LABOUR AND SOCIAL WELFARE












SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE
JUNE 3 & OCTOBER 7, 2002









The appellant in
person



Y.
Dondo
, for the
respondents









ZIYAMBI
JA: The appellant, who was formerly an employee of the public
service, was, on the 10
th
November, 1997, discharged from the service after having been found
guilty of misconduct. The discharge was communicated to her,
by the
first respondent, in a letter dated 19
th
November, 1997. On or about the 12
th
May, 1999, some 14 months later, the appellant filed with the High
Court an application for review of the decision to discharge her.

The matter came before the High Court in February 2000. In terms of
the High Court Rules the application was out of time. However,
the
appellant, being unrepresented, was advised to make an application
for condonation and was granted a postponement to enable her
to do
so.






On
the 3
rd
March, 2000, the appellant filed an ‘Application for condonation of
late noting of review proceedings’. No explanation for
the delay
in filing the application was given and the appellant was content to
repeat the allegations made in her founding affidavit
for review
proceedings. In that application, the appellant made the claim that
Rule 259 of the Rules of the High Court was inapplicable
to these
proceedings since she was seeking a declaratory order. The learned
judge before whom the matter was argued concluded that
no proper
explanation had been given for the delay of 15 months in bringing the
application. He found that:-





“The
delay between the institution of the application and also the setting
down of the application for condonation, each in themselves
and
cumulatively rendered undesirable that … condonation should be
given in this case.





Considerable
prejudice would now arise to the respondents in this matter if leave
were to be given. Moreover there are two factors
in relation to the
merits of the application which must be considered. Firstly, the
applicant has brought this application before
she exhausted her
domestic remedies. In that she did not pursue her right of appeal
from the decision which she now seeks to review.
Secondly, and in
any event, it does not seem to me that the technical nature of the
complaints which she makes are justified on
a proper reading of the
regulations.”



The application for
condonation was refused on those grounds. The learned judge also
dealt with the question as to whether the matter
before him was in
the nature of an application for a declaratory order in which event
condonation would have been unnecessary. He
concluded, correctly in
my view, that because of the nature of the remedy sought, the
appellant was seeking a review. A look at
the application filed by
the appellant supports this view. The appellant complained of the
manner in which the disciplinary proceedings
were held and denied
that she was guilty of the charges preferred against her. She stated
the grounds of review to be:-






“GROUNDS OF REVIEW






1. Charges against applicant did
not invoice financial prejudice to the government. Applicant was
being charged in terms of paragraph
12 to the second schedule to S.I.
65/92 in connection with bribery.







2. Applicant was not precisely
informed of the nature of charge against her. Documentary evidence
which was to hand letter was not
attached to the charge letter
including the report of the Board of Investigations, File No. 43508 R
and statements of complainants.
Applicant was not confronted with
evidence from further investigations.







3. There was nothing showing that
misconduct was committed put before applicant or the determining
authority.







4. Charges of misconduct should
have been preferred by the head of department who caused
investigations.







5. The matter of whether
applicant was guilty of misconduct should have been determined by the
head of department as applicant was
an employee at the material time.
It was irregular for 1st respondent to order further
investigations.







6. The finding that applicant is
guilty of misconduct is reviewable on grounds of unreasonableness.







7. Applicant was not given the
reasons for the determination.






Applicant
will seek that she be reinstated into her employment and grade.”








Review proceedings
are governed by Rule 259 of the High Court Rules which provides as
follows:-


“Any
proceedings by way of review shall be instituted eight weeks after
the termination of the suit, action or proceedings in which
the
irregularity and illegality complained of is alleged to have occurred
–






Provided
that the Court may for good cause shown extend the time.”



The
rule is peremptory and failure to comply therewith is fatal to the
proceedings in the absence of an application for condonation.
See
Kodzwa v Secretary for
Health and Child Welfare and Another

S-50-99.








The appellant,
having failed to obtain condonation of the late application and an
extension of time within which to bring the review
proceedings, is
out of Court and it follows that the learned judge was correct in
dismissing the application.









Accordingly, it is
ordered that the appeal be and is hereby dismissed with costs.























CHIDYAUSIKU
CJ: I agree























MALABA
JA: I agree


























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