Gilbert Mushure v NEC for Transport Operating Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/443/13
HELD AT HARARE 6TH SEPTEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/443/13

HELD AT HARARE 6TH SETPEMBER 2013	    CASE NO LC/H/815/12

AND 13 SEPTEMBER 2013

GILBERT MUSHURE				Applicant

NEC FOR TRANSPORT				Respondent

OPERATING INDUSTRY

Before The Honourable G Musariri, Judge

For Applicant		Mr G Mushure, Applicant

For Respondent		Mr A Demo, Attorney

MUSARIRI, G:

Applicant applied for “reinstating my appeal on grievances.”  Respondent opposed the application.  The application was not in the proper form.  Neither did it disclose the provision of either the statute or instrument in terms of which it was made.  The material facts are three-fold.

On 25th September 2012 the Honourable L Chibvongodze made an arbitration award which directed Respondent to make certain payments to Applicant.

On 15th October 2012 Applicant filed an appeal in this Court against the arbitration award.

On 20th November 2012 Applicant filed a Notice of Withdrawal of his appeal from the Court.

The long and short of the application is that Applicant has changed his mind.  He now wishes to nullify the withdrawal in order to pursue the appeal.  He stated that he withdrew the appeal because of frustration arising from alleged

delaying tactics by Respondent combined with financial distress.  These reasons though are not stated in the founding affidavit attached to his application.

Respondent’s answer is captured in its Heads of Argument.  The relevant portion read thus,

“The instant application is a nullity, since there is no appeal to reinstate.  It is premised on nothing because the appeal was removed from this Court, through a Notice of Withdrawal.

As stated in paragraph 2 of the Respondent’s Opposing Affidavit, this application is unprocedural.  The Applicant was supposed to apply for condonation and lodge a fresh appeal.”

I am persuaded by Respondent’s submissions.  Once the appeal was withdrawn, there was nothing left pending in this Court.  The matter had been disposed of by the withdrawal.  As such there is nothing capable of being reinstated.  This situation is distinguishable from a case that is struck off the roll which can be reinstated because it remains pending.  Thus  the application in casu cannot succeed as it is based on nothing.  In any case, Applicant did not point to any statute or instrument which permits such an application.

Wherefore it is ordered that,

The application is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

JUDGE