Nerves Ironcraft (Pvt) Ltd v Ezra Masuka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/315/24
HARARE, 23 JULY 2024
CASE NO LC/H/611/24
31 JULY 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 23 JULY 2024

31 JULY 2024

JUDGMENT NO LC/H/315/24 CASE NO LC/H/611/24

NERVES IRONCRAFT (PVT) LTD	APPLICANT

EZRA MASUKA	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	- Mr T. Danana, Attorney

For Respondent	- Ms N. Matongwana, Unionist

MUSARIRI, J:

At the onset of oral argument in this Court, respondent raised a point in limine which applicant opposed.

The point is to the effect that the application for rescission is fatally defective for failure to comply with the Labour Court Rules, 2017 as amended. Rule 11A (4) provides that

“Every notice of appeal or application shall provide an alternative email address for the purpose of service or delivery of pleadings.”

In his opposing affidavit respondent stated that

“3.2 In the instant application there is no email address which was provided by the applicant

3.3 I am advised that the rule is phrased in peremptory terms. The consequence of non- compliance to provide an alternative email address, the present application is fatally defective, invalid and a nullity.  I am further advised that such defect cannot be condoned or amended.”

Applicant responded through its heads of argument thus

“3…Clearly a reading of Rule 11A clearly shows details which are supposed to be given to the Registrar on filing of court process. Or which are supposed to be on the form used to file an Application or Appeal. If indeed the Respondent for any reason did not know the email address to send his notice of Opposition or that he could effectively serve his documents he ought to

have raised a complaint with the Registrar and the Registrar ought to have acted in terms of Rule 47 of the Labour Court Rules 2017.

4. It is on the above basis that the preliminary Point should be dismissed.”

This Court is persuaded by respondent’s argument Rule 11A (4) is cast in peremptory terms. It must be strictly followed. Failure to comply therewith renders the impugned document a  nullity. As correctly pointed out by respondent a nullity is a nullity. It cannot be corrected or condoned. The Court is fortified in this conclusion by the dicta in,

Mazambani v International Export

Per Mathonsi JA at P1423C/2020(1) ZLR 1415(S)

“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 provisions of the rules and that a failure to comply with the  mandatory provisions of the rules renders an appeal a nullity.”

By parity of reasoning the failure to comply with the mandatory provision in Rule 11A (4) Renders the application in casu a nullity. Applicant’s argument about Rule 47 is misguided and amounts to a red herring.

Wherefore it is ordered that

The respondent’s point in limine be and is hereby upheld;

The application for rescission is struck off the roll for being fatally defective; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E