Misheck Dembaremba v Stuttafords Removals (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/189/2021
HARARE, 21 SEPTEMBER 2021
22 OCTOBER 2021
CASE NO LC/H/174/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/189/2021

HARARE, 21 SEPTEMBER  2021&		   CASE NO LC/H/174/21

22 OCTOBER 2021

In the matter between:-

MISHECK DEMBAREMBA				APPLICANT

And

STUTTAFORDS REMOVALS (PVT) LTD		RESPONDENT

Before the Honourable Kudya J

For the Applicant		Pabwe  (Legal Practitioner)

For the Respondent		Diza  (Legal Practitioner)

KUDYA, J:

Application for condonation for late noting of review application was filed at the instance of the applicant employee.  The respondent employer opposed the condonation and raised a point in limine.  It is the point in limine which is the subject of this judgment.

The employer takes the point that the condonation application is improperly before the court as it is based on a defective notice of review.  Its argument is that LC5 the form on which a review application is to be made makes it clear that the application shall be accompanied by a founding affidavit which the respondent would be required to respond to.  In its view since the employee did not do that it means that his application for condonation is bad at law and should be dismissed.

In reacting to the point the employee mentions that his application is good at law.  He says all that is required of him is just a draft with brief grounds without the attendant founding affidavit. He reasons that if the legislature intended a draft to be equated to the actual review application then it would have spelt out that clearly.  A reading of the rule  22 (2) referred to by the employee indeed speaks to a draft notice of review or appeal  The critical question is what is a draft. The Oxford Dictionary defines a draft as “….a preliminary  version of writing….”

If the definition is put into context of the rule under decision it is patently clear that the facts relied upon on the review matter have to be pleaded otherwise it would make a mockery of the peremptory provision in LC5 form stating with no ambiguity that a concise exposition of the relief sought be set out.

The court is persuaded that absence of the founding affidavit setting out the review relief makes a mockery of the LC5 form and rule 22(2).  It is clear that there is no way the court can be able to even consider the merits rung of the condonation application if that does not appear clearly in the facts of the review.  The court is therefore persuaded by the argument raised by the employer that the condonation application is bad at law as it is founded on a null draft notice of appeal.  The impact of such can not be overemphasised See McFoy v United Africa Company 1961(1) AllER 1169(PC) where it is emphasised that a nullity begets a nullity. In the result the point in limine should succeed.

IT IS ORDERED THAT

The point in limine vis the draft ratio of review being merited it be and is hereby upheld. The condonation application is consequently struck off the roll with costs on the ordinary scale for want of a proper draft notice of review.

Venturas and Samukange, Applicant’s Legal Practitioners

Mhishi Nkomo Legal Practice, Respondent’s Legal Practitioners