Joseph Sanyangore v Grain Marketing Board

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/235/2020
HARARE, 24 SEPTEMBER 2020
CASE NO. LC/H/13/20
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THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/235/2020

HARARE, 24 SEPTEMBER 2020	    CASE NO.    LC/H/13/20

AND 06 NOVEMBER 2020

JOSEPH SANYANGORE							Appellant

GRAIN MARKETING BOARD						 Respondent

Before Honourable G. Musariri, Judge

For Appellant		-	Mr O. Kondongwe, Attorney

For Respondent	-		Mr. H. Muromba, Attorney

MUSARIRI, J:

On the 9th January 2020 Respondent’s Chief Executive Officer reversed their Disciplinary Committee’s determination.  In place therefore he ruled that Appellant be demoted from the position of Quality Assurance Officer to the position of Handling Supervisor.  Appellant then appealed to this court against the decision of the CEO.  Respondent cross appealed the CEO’s decision.  In due course the matter was set down for hearing.

At the onset of oral argument Appellant raised a point in limine .  He argued that there was no proper Response to his appeal.  Rule 19 (2) of this Court’s Rules

incorporated as S.I. 150/17 requires that the Response be in the prescribed form called Form LC2.  The Form requires that the Response be accompanied by an affidavit.  Respondent’s Response failed to attach the requisite affidavit. The Rule is couched in peremptory terms.  Therefore the Response (without an affidavit) amounts to a nullity.  On that basis Appellant prayed that the Response be expunged from the record.

Respondent opposed Appellant’s point and prayer.  It stated that its Response complied with Rule 19 (2).  Its only that it called itself “grounds” of response” instead of “affidavit”.

It further argued that the Rules permit modification of Forms.  The Registrar of this court may refuse to accept the modified form.  The Registrar in this case accepted the modified form.  Therefore the Response is compliant with the Rules.  Lastly, and alternatively, Respondent prayed that the court condones the modified form in the interests of justice in order to procure an expeditious determination of the matter.

The requirement that Response be backed by an affidavit is more than just a technicality.  An affidavit is a sworn statement by which the deponent affirms the truthfulness of the contents of the affidavit.  In other words an unsworn statement cannot be equated to an affidavit.  On that basis l hold that Respondent’s Response failed to comply with Rule 19 (2).  Because of the peremptory nature of the Rule, failure to comply renders the Response a nullity.  A nullity is nothing.  Hence it cannot be condoned.  It is incapable of condonation.  On that basis Appellant’s alternative plea for condonation is baseless.

Wherefore it is ordered that:

Appellant’s point in limine be and is hereby upheld; and

Respondent’s Response is struck out of the record.

G MUSARIRI

J-U-D-G-E