National Biotechnology Authority v Jonathan Mufandaedza & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC.H//24
HELD AT HARARE 18 MARCH 2024 CASE NO., LC/H/694/23 AND 21 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC.H//24

HELD AT HARARE 18 MARCH 2024	CASE NO., LC/H/694/23 AND 21 MARCH 2024

IN THE MATTER BETWEEN:-

NATIONAL BIOTECHNOLOGY AUTHORITY	APPLICANT AND

JONATHAN MUFANDAEDZA	FIRST RESPONDENT

INNOCENT CHAGONDA N.O.	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. O. Kondongwe

For First Respondent	Advocate S. Hashiti No Appearance for Second Respondent

MURASI J.,

In a Notice issued on 9 August 2023, Applicant’s application for leave to appeal to the Supreme Court was deemed abandoned by the Registrar in terms of Rule 46 (b) of the Labour Court Rules, 2017. This is therefore an application for reinstatement of the application.

At the commencement of the proceedings, Advocate Hashiti raised the preliminary issue relating to the propriety of the application before the Court. He stated that a party who fell foul of the rules of court should first seek condonation before applying for the reinstatement of the matter. In this regard he referred to the case of Sergeant Mhande & Anor v Chairman of the Police Service Commission & Ors SC 63/18. He specifically relied on the following passage by BERE JA:

“It is the accepted position of the law that an applicant who has failed to comply with a given court order, or infringed the rules of the court must seek to be condoned or pardoned for non-compliance first before applying for reinstatement of their case.”

Advocate Hashiti further submitted that this was the law and as the decision emanated from the Supreme Court, it was binding on the Court.

In response, Mr. Kondongwe stated that the case cited by First Respondent’s Counsel was distinguishable in that the applicants in that case were four (4) months out of time without complying with the Court Order. He further submitted that the Court should be guided by Rule 36 of the Labour Court Rules which provide that a litigant is permitted to file for reinstatement within 21 days of the deeming event. He added that condonation would only arise where the litigant would have failed to comply with 21 days stipulated in that particular rule.

For the purpose of neatness I will deal with this point before dealing the issues the Court raised with the Applicant’s Counsel. A reading of the Mhande judgment referred to by Advocate Hashiti does not show that the Court was dealing with the Labour Court Rules. The judgment clearly refers to the fact that a previous order had been issued by the Supreme Court. It was therefore a failure to comply with that order. Advocate Hashiti further stated that the judgment referred to above was binding on this Court. As already stated, the judgment did not deal with the Labour Court Rules. There are specific provisions in the form of Rule 36 and Rule 46 in the Labour Court Rules dealing with the issue of reinstatement of matters deemed to have been abandoned. These provisions are in statutory form. They have not been set aside by a court of competent jurisdiction. It is trite that a precedent emanating from a court does not override statutory provisions unless it is to strike down that provision. In the present matter it is my view that the rules of this Court provide for the reinstatement of matters without any application for condonation. Applications for condonation would only be necessary where a litigant has failed to comply with the prescribed periods of time in those rules. It is thus my considered view that the preliminary point raised by Advocate Hashiti ought to be dismissed.

I now turn to the issues the Court raised with Mr. Kondongwe as regards the application that is before the Court. The Court raised two issues. The first related to paragraph 6 of the Founding Affidavit and the second issue dealt with the Draft Order.

Mr. Kondongwe first submitted that the Affidavit was correct but later changed and stated that the paragraph should not be taken in isolation as the other parts of the affidavit referred to what the application intended to achieve. He had in fact averred that this was typing error. To this end he submitted that the Founding Affidavit should considered as a whole. He submitted that it would not be in the interests of justice to have the matter struck off the roll. He implored the Court to have regard to the provisions of section 90A of the Labour Act, (Chapter 28:01). In this this regard he urged the Court to at least allow Mr. Dube to give evidence in respect of the paragraph 6 referred to by the Court. As far as the second issue was concerned, Mr. Kondongwe made the concession that the second item in the Draft Order should be removed as it was not properly there.

In response, Advocate Hashiti submitted that the Founding Affidavit was defective as a reading that paragraph would show that there was no causa before the Court. He referred to the heading

of the paragraph and stated that the deponent of that affidavit should have been alive as to what was contained therein. He argued that Applicant’s Counsel was aware of the repercussions of such fatal errors and should have withdrawn the application and tendered costs. He added that this was an affidavit from a legal practitioner which meant that it required greater care in its formulation and drafting. As for the Draft Order, Advocate Hashiti stated that it should speak to the application which was not the case and as such the application must be dismissed.

It is pertinent that I reproduce the paragraph the Court referred to which is as follows:

“Nature of application

6. This is an application for reinstatement of the matter under LC/H/488/23 which was deemed to have been abandoned by the Registrar of Court for failure by the Applicant to file a certificate of service of the chamber application in terms of rule 46 (b) of the Court rules..”

Page 74 of the Consolidated Record shows the Notice from the Registrar which was attached by the Applicant. The Notice clearly states as follows:

“Dismissal Letter for Failure to File Heads of Argument”

In Stevenson v Minister of Local Government & Others 2002 (1) ZLR 498 (S), it was held as follows:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it.”

The person who prepared the affidavit is a legal practitioner. The Notice referred to above was filed by a legal practitioner. A reading of the affidavit in paragraph 6 shows that it is referred to as “Nature of application”. This can in another way be stated as “Reason for the Application”. Clearly a deponent is supposed to put his/her to the issue that he/she is addressed in the important paragraph. To crown it all, the deponent was a legal practitioner. The same deponent was represented by a legal practitioner. One would have expected either to see that that the affidavit was defective as the purpose of the application was clearly wrong. Mr. Kondongwe made the ingenious proposal that the deponent be asked to testify because section 90A of the Act allowed the Court such discretion. That section, in my view, can only be utilized where a matter is properly before the Court.

Can it be said that the error in paragraph 6 has been ‘cured’ by the rest of the affidavit? I do not think so. A reading of that affidavit shows that reference is thereafter made to the facts leading to the non-compliance with the rules. The Nature of the application remains embedded in that paragraph. In my view, paragraph 6 remains defective as it gives the wrong reasons for the application. The causa is clearly missing. What is evident is that this was a lack of diligence on the part of the Applicant’s legal practitioners. MATHONSI J (as he then was) had this to say in Hughber Petroleum (Pvt) Ltd & Anor v Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H):

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court.”

The observations made by McNALLY JA in Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E still ring true. The Learned jurist stated as follows:

“It is a policy of the law that there should be finality to litigation. On the other hand one does not want to do injustice to litigation but it must be observed that in recent years applications for condonation; for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for mercy than justice. Incompetence has become a growth industry.”

In the present matter, the causa cited in paragraph 6 of the Founding Affidavit is clearly wrong. It cannot be amended. As stated earlier, a litigant stands or falls by his/her founding and facts alleged in it. As far as the Draft Order is concerned, it is a known fact that it is not binding on the Court and Mr. Kondongwe had acknowledged its deficiency and had stated that the second item should be excised from the Draft Order. Nothing turns of this.

In the result, the Court is of the view that the application for reinstatement should be struck off the roll by reason of a defective Founding Affidavit.

The Court makes the following Order:

The application for reinstatement of Case No. LC/H/488/23 is hereby struck off the roll by reason of a defective Founding Affidavit.

There is no order as to costs.

Dube, Maikai & Hwacha-	Applicant’s legal practitioners

Venturas & Samukange-	First Respondent’s legal practitioners.