Davies Ndumiso Sibanda
FAILURE to stick to set legal timeframes before one makes an appeal against any decision of the lower disciplinary authority does not mean that an application for condonation of late noting of an appeal will be entertained.
I have come across many workers and employers who engage in futile exercises of appealing for condonation of late filing of an appeal at a huge cost after being misled into believing that any delay in appealing can be cured by applying for condonation of late filing of appeal.
Contrary to the common belief that application for condonation is a walk in the park, the test is a complex four-step process and very few cases pass all the steps. If a case fails one of the tests, the application will fail.
The first test to be passed by an application for condonation of late filing of an appeal is that the court will look at the extent of the delay and arguments presented by both parties for the extent of the delay.
Here, the focus of arguments is the extent of the delay and not reasons for the delay.
The second test is the reasonableness of the explanation for the delay. Stories like “I was sick” or “I was not aware I could appeal”, “I was not aware of the timeframes”, “My lawyers let me down as they did not appeal on time or my representative let me down”, or “I was out of the country” will in most instances fail as these are tired stories that courts have dealt with and dismissed on many occasions.
The third test relates to prospects of success of the appeal, should the application be granted.
This is another area of contested ground as the other party in most cases will also present grounds on why there are no prospects of success.
The fourth test relates to whether there is possible prejudice to the respondent should the application be granted.
In most cases where respondents are employers it is easy to present prejudice as the employer will have made business decisions with costs on the basis of the fact that the matter is closed.
Given all these tests, it is obviously not an easy thing to make a successful application for condonation of late noting of an appeal.
Employers and workers are therefore advised to be cautious when making such applications, more-so because almost in all cases where condonation is denied, the losing party has its case dismissed with costs, and if that happens at Labour Court or Supreme Court level, the costs could leave an individual destitute and an organisation could find itself with unsustainable costs which could lead to loss of property.
One short case that demonstrates the complexities that I have summed up is the matter Onesimo Musi vs Old Mutual Life Assurance (SC66/2015) where Musi’s application was dismissed with costs.
In conclusion, parties must seek expert advice before making applications for condonation of late filing of an appeal as the matters can be dismissed with costs and if one was sitting on an open ended liability, it will have grown even bigger by the time one complies.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] or mobile number 0772 375 235.