Alexander Siginya v Edgars Store Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/364/2025
HARARE, 26 SEPTEMBER, 2025
and 07 OCTOBER, 2025
CASE NO LC/H/545/25
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/364/2025 HARARE, 26 SEPTEMBER, 2025

and 07 OCTOBER, 2025	CASE NO LC/H/545/25

ALEXANDER SIGINYA	APPLICANT

EDGARS STORE LIMITED	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- S. Muhambi, Unionist

For Respondent	- C. Mucheche, Attorney

MUSARIRI, J:

Applicant applied to this Court for reinstatement of his condonation matter LC/H/301/25. The application was made in terms of Rule 36 of the Labour Court Rules, 2017. At the onset of oral argument respondent raised three (3) points in limine which applicant opposed. The points will be addressed ad seriatim.

That the application is defective for want of a founding affidavit deposed by applicant:

Respondent argued that a party must base his application on his founding affidavit per Rule 14 of the Court’s rules. In casu applicant relied on the sole affidavit deposed by his representative S. Muhambi. Respondent further argued that Muhambi did not provide proof of his authority to depose the affidavit on behalf of applicant. Respondent countered that Muhambi’s affidavit complied with rule 14.

Rule 14 (1) provides that,

“(1)	A court application shall be in Form LC1 and shall be supported by one or more affidavits setting out the facts upon which the applicant relies together with the draft order.”

The rule simply requires that an application must be supported by affidavit/s. It does not specify who should depose the affidavit. In his affidavit Muhambi stated on oath that he was authorised by applicant to depose the affidavit. In argument respondent conceded that they cannot say that Muhambi is acting fraudulently. Further and in any event Muhambi acted for applicant in the matter that applicant wishes to have reinstated. The Court concludes that this point was poorly taken.

That the application, having been served out of the prescribed period, stands to be struck off:

The Affidavit of Service stated that

“I Strutton Muhambi, do take oath and swear that:

On the 23rd of June 2025, our Mr v Mutokonyo served the respondent the application through their email of its legal practitioners by our email; cwuz2014@gmail.com and as at 15:00 hours on the 27th of June 2025, the email seems to have not been received.

On the very day (27 June 2025) at 15:46 hours, I have resent the application through my email (struttonmuhambi77@gmail.com) but till today, no response has been forwarded to us but the email has been successful sent.

I have attached my proof of service to serve as annexure A.”

Service on the 23rd June 2025 should have been spoken to by Mutonyo who allegedly effected it. In the absence of anything from Mutonyo it cannot qualify as proper service. Service on the 27th June 2025 is the one respondent states was done out of time.

Rule 14 (4) provides that,

“(4)	The applicant shall serve copies of the application together with annexures thereof to the respondent within five days of their issuing out and within ten days thereafter, file with the Registrar proof of service in accordance with rule 11.”

In casu the application was issued on 19th June 2025. It should have been served within five days that is on or by 26th June 2025. However the application was served on 27th June 2025 which was out of time. Failure to strictly comply with statutory time-lines renders the impugned action a legal nullity.

See TMPC V Guhwa SC 19/25

Per Chatukuta JA

“27.  …….The section does not provide for an extension of the time frame. Upon lapse of the 14 days period the disciplinary authority ceases to have jurisdiction to determine the matter. It is an established principle of our law that anything done contrary to the law is a nullity. Any proceedings held and any determination made outside the period is therefore a nullity.”

By parity of reasoning in casu the service of the application outside the statutory timeframe renders the service a nullity. By extension the application, not having been properly served, amounts to a nullity as well.

That the application ought to have been accompanied by a separate application for condonation:

During the course of oral argument, respondent abandoned this point.

Conclusion

In light of the above analysis and synthesis it is concluded that the respondent’s 2nd point in limine

was well-taken.

Wherefore it is ordered that,

Respondent’s 1st point in limine be and is hereby dismissed;

2(a)Respondent’s 2nd point in limine is hereby upheld;

(b) The application for reinstatement of matter LC/H/301/25 is struck off the roll as a nullity; and

3.  Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E