Court name
Supreme Court of Zimbabwe
Case number
SC 13 of 2006
Civil Application 59 of 2004

Mapengo v Chitungwiza Municipality and Another (59/04) (SC 13 of 2006, Civil Application 59 of 2004) [2006] ZWSC 13 (15 February 2006);

Law report citations
Media neutral citation
[2006] ZWSC 13
















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