Lioyd Machacha V Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/349/2024
HARARE, 21 MAY 2024 29 AUGUST 2024
CASE NO LC/H/400/24
LIOYD MACHACHA
APPLICANT
HEALTH SERVICE COMMISSION
RESPONDENT
Before the Honourable G. Musariri Judge:
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Before the Honourable G. Musariiri Judge:

For Applicant - Mr L. Machacha, Applicant
For Respondent - Ms A Magunde Officer and Mr C. Gutu Advisor

MUSARIRI, J:

Applicant applied to this Court for leave to appeal to the Supreme Court in terms of Section 92 F (2) of the Labour Act Chapter 28:01 as read with Rule 93 of the Labour Court Rules, 2017.

At the onset of oral argument Respondent applied for upliftment of bar and condonation of belated Response and heads of argument. Applicant opposed the respondent’s application. Respondent submitted that the application for leave to appeal was served on them on 23 April 2024. This is indeed confirmed by Applicant’s Affidavit of Service. Respondent stated that their copy of the application was date-stamped 24 April 2024. As they had ten (10) days within to respond, they reckoned that the last day for filing their Response was 9 May 2024. They filed their response together with their Heads of Argument on 9 May 2024. Respondent stated that they only learnt through Applicant’s Heads of Argument that they ought to have filed their papers on or by 8 May 2024. Thus respondent submitted that delay of one (1) day in filing their papers was caused by the erroneous stamp on their documents.
 Applicant argued that even if this Court were to condone the delay in filing a Response by Respondent, the belated Response is fatally defective because the deponent of the opposing affidavit did not produce proof of his authority to act for Respondent, a corporate/statutory body. Applicant further argued that the belated is a nullity being consequent to disciplinary proceedings “stemming from a nullity.”

Respondent countered by raising the point that the application for leave itself is out of time. The judgement sought to be appealed was issued on 27 March 2024. In terms of Rule 43 an application for leave, must be filed within twenty-one (21) days of the judgement. The present application was filed on 23 April, 2024 about 1 ½ months out of time. The applicant should have explained the cause for delay and sought condonation. He did neither.

The critical point which emerges from the above polemics is that applicant filed his application for leave out of time. In otherwords the application was filed in violation of the Court’s Rules specifically Rule 43. The result is that the application amounts to a nullity. The defaults in the Response filed by respondent are therefore inconsequential. This conclusion is consonant with the dicta in

Mazambani v International Export 2020(1) ZLR 1481(S)

Per Mathonsi JA at 1423 D

“In terms of r 37(1) (e) of this court’s rules, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner and shall state the ‘exact relief sought.’ The authorities make it clear that every notice of appeal must strictly comply with the mandatory provision of the rules of court and that a failure to comply with the mandatory provisions of the rules renders an appeal a nullity.”

By parity of reasoning applicant’s failure to comply with the mandatory rules for filing an application, renders his application a nullity. Rule 43 is cast mandatory/peremptory terms. Therefore, applicant’s failure to comply therewith renders his application a nullity. Nothing can be founded on a nullity. It ought to be struck off the roll.


Wherefore it is ordered that

1. The application for leave to appeal be and is hereby struck off the roll for the reason that it is a nullity; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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