Richard Chayikosa v The City of Harare

The applicant was dismissed by a disciplinary body constituted by employees of the City of Harare Council. After dismissal, the applicant went home and did nothing about the matter for many years, during which time the respondent hired other people believing the applicant had accepted the outcome. In 2011, the applicant took the matter of alleged wrongful dismissal to the Labour Court, where judgment was made against him. He applied for leave to appeal which was refused on 11 May 2012. The applicant only made an application for leave to appeal to a judge of the Supreme Court on 20 December 2013, some 1 year and 6 months after the refusal of leave to appeal. The applicant alleged that his legal practitioners let him down by not advising him that leave to appeal had been refused. He complained that the disciplinary body was not properly constituted and relied on the case of Zvobgo, but the documents showed clear evidence of misconduct.

• Whether there was a reasonable explanation for the inordinate delay of 1.5 years in applying for leave to appeal
• Whether the applicant had prospects of success on appeal
• Whether the disciplinary body was properly constituted in terms of S.I. 66/92
• Whether procedural irregularities in the disciplinary proceedings warranted granting leave to appeal

The application for leave to appeal was dismissed with costs.

Where an application for leave to appeal is made after an inordinate delay (in this case 1.5 years), the applicant must provide a reasonable explanation for the delay. Where the applicant alleges that legal practitioners failed to advise them of a refusal of leave to appeal, it is incumbent upon the applicant to obtain an explanation from the legal practitioner concerned to substantiate this claim. In the absence of a reasonable explanation for delay, there must be good prospects of success on appeal for leave to be granted. An applicant cannot succeed on an application for leave to appeal where allegations of procedural irregularities are unfounded and there is clear evidence of the misconduct charged in disciplinary proceedings.

The court observed that after dismissal, the applicant went home and for many years did nothing about the matter, during which time the respondent hired other people on the belief that the applicant had accepted the outcome of the disciplinary proceedings. This observation, while not forming part of the binding ratio, suggests that delay and acquiescence may be relevant factors in considering applications of this nature, and that employers are entitled to rely on apparent acceptance of disciplinary outcomes when employees fail to challenge them timeously.

This case demonstrates the strict approach Zimbabwean courts take to applications for leave to appeal brought with inordinate delay. It establishes that where an applicant blames legal practitioners for delay, the applicant bears the burden of obtaining an explanation from those legal practitioners. The case also illustrates that in labour matters involving disciplinary proceedings, both procedural propriety and substantive evidence of misconduct are relevant, and that prospects of success must be particularly strong where there has been unreasonable delay.