No. SC 69\2002
Appeal No. 65\01
SCHOLASTIC NYAMANDE v (1) THE DIRECTOR OF
PENSIONS (2) THE SECRETARY OF PUBLIC SERVICE
LABOUR AND SOCIAL WELFARE
SUPREME COURT OF
CJ, ZIYAMBI JA & MALABA JA
JUNE 3 & OCTOBER 7, 2002
The appellant in
Dondo, for the
JA: The appellant, who was formerly an employee of the public
service, was, on the 10th
November, 1997, discharged from the service after having been found
guilty of misconduct. The discharge was communicated to her,
first respondent, in a letter dated 19th
November, 1997. On or about the 12th
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,
appellant, being unrepresented, was advised to make an application
for condonation and was granted a postponement to enable her
March, 2000, the appellant filed an Application for condonation of
late noting of review proceedings. No explanation for
in filing the application was given and the appellant was content to
repeat the allegations made in her founding affidavit
proceedings. In that application, the appellant made the claim that
Rule 259 of the Rules of the High Court was inapplicable
proceedings since she was seeking a declaratory order. The learned
judge before whom the matter was argued concluded that
explanation had been given for the delay of 15 months in bringing the
application. He found that:-
delay between the institution of the application and also the setting
down of the application for condonation, each in themselves
cumulatively rendered undesirable that
condonation should be
given in this case.
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
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
4. Charges of misconduct should
have been preferred by the head of department who caused
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
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.
will seek that she be reinstated into her employment and grade.
are governed by Rule 259 of the High Court Rules which provides as
proceedings by way of review shall be instituted eight weeks after
the termination of the suit, action or proceedings in which
irregularity and illegality complained of is alleged to have occurred
that the Court may for good cause shown extend the time.
rule is peremptory and failure to comply therewith is fatal to the
proceedings in the absence of an application for condonation.
Kodzwa v Secretary for
Health and Child Welfare and Another
having failed to obtain condonation of the late application and an
extension of time within which to bring the review
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.
CJ: I agree
JA: I agree
Division of the Attorney-Generals Office, respondents legal