Farai Sibanda v African Mills & Minerals (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/191/2020
HARARE, 23 JUNE, 2020
CASE NO. LC/H/APP/429/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/191/2020

HARARE, 23 JUNE, 2020		    	     CASE NO. LC/H/APP/429/19

AND 14 AUGUST, 2020

In the matter between:

FARAI SIBANDA							Applicant

AFRICAN MILLS & MINERALS (PVT) LTD			1st Respondent

FAITH MUPANGANI N.O						2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				In Person

For 1st Respondent:				Mr Muhlekiwa ET. – Muhlekiwa Legal Practice

For 2nd Respondent				No appearance

HOVE J:

This is an application for condonation and for extension of time within which to file an application for reinstatement of case number LC/H/APP/596/18.

At the hearing, the respondent raised several preliminary points which included that the application was fatally defective in several respects which included the following;

That there was no proper affidavit in support of the application. It was submitted that the founding affidavit was not signed before a commissioner of oaths and the applicant herself who had filed the founding affidavit in her name, had not even signed the founding affidavit. It was also submitted by the respondent that the application itself did not comply with rule 22 of the Labour Court Rules, 2017.

The application should it succeed, was trying to resuscitate a matter that had been dealt with to finality by Honourable Murasi J.

In response to all the preliminary points raised, the applicant, who was a self- actor, submitted that the respondent was merely seeking to complicate a very simple matter of unfair dismissal and the employer’s refusal to pay terminal benefits. She submitted that the applicant was just bent on raising technicalities. She urged the Court to look at the substance of the affidavit and not the technical issues of who signed before whom or who did not sign.

The resultant factual position is that the issues raised by the respondent were not disputed and that is that the founding affidavit had not been signed and neither had it been duly sworn or commissioned. The record is also clear that the founding affidavit was not signed and further, it had not been signed before a commissioner of oaths. The result is that the application is fatally defective in that it was founded on an affidavit that was fatally defective.

Affidavits filed before the Court must be properly signed and commissioned. The applicant could not show that the affidavit was duly sworn to and commissioned. The applicant could also not fathom why the respondent was, to her mind, insisting on technicalities and needlessly complicating matters. But this is not a case of majoring in technicalities. The failure to properly sign the affidavit and the fact that it was not commissioned is a failure that is very decisive. The failure renders the application not only defective but fatally defective. There is therefore nothing placed before the Court, no application before the Court.

The position of law is now trite that when an act is fatally defective, it is void. It is a nullity. It is not only bad but incurably bad. Nothing can stand on it. See in this regard the case of Mcfoy v Africa United Company Ltd (1961) 3 ALL ER.

Having found that the founding affidavit is void and a nullity, there is no need to consider the other issues raised. The application failed on this point. The following order was appropriate.

Order

The application be and is hereby struck off the Roll with costs on the ordinary scale.