Oliver Mukichi v Halwick Investments (Pvt) Ltd t/a Whelson Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2025
HARARE, 28 FEBRUARY 2025 AND
5 MARCH 2025
CASE NO LC/H/1306/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H//2025

HARARE, 28 FEBRUARY 2025 AND                   CASE NO LC/H/1306/24

5 MARCH 2025

OLIVER MUKICHI                                                   	        	 APPLICANT

HALWICK INVESTMENTS				           	  RESPONDENT

(PVT) LTD T/A WHELSON TRANSPORT

Before the Honourable G. Musariri, Judge:

For Applicant      		- C. Chigwada, (Unionist)

For Respondent		-M. Muzaza, (Attorney)

MUSARIRI J,

Applicant applied to this Court for the reinstatement of his appeal (LC/H/984/24) which was deemed as abandoned and dismissed.  The application was made in terms of Rule 46 of the Labour Court rules, 2017.  Respondent opposed the application.

The appeal was dismissed by the Registrar of this Court on 23rd October 2023 for failure to file heads of argument timeously.  Applicant then filed an application for reinstatement of the appeal (LC/H/1196/24).  On the 9th of December 2024 the application was dismissed for failure to file proof of service.  Applicant then filed the present application on the 20th December 2024.

The material apart of the founding affidavit stated that

“4.	I received a phone call from my union representative on the 25th October 2025 were I was advised that he had failed to file Heads of Argument in my above indicated matte (Notice of Appeal), that the reason being, in an attempt to file heads at the “e-filing desk” on the 23rd October he realized that the matter had just been dismissed, for failure to file same, in time.

5.	That one Mr Rusere, who is colleague of his, had failed to hand over a copy or informed him of the existence of a Notice of Response, which he had received from the Respondent, on the 7th of October 2024, and which had gotten mixed it with his other documents.

7.	I humbly aver that this request is neither frivolous nor vexations, also as the appeal which was before this Court is not devoid of merit, I am advised and which advice I accept.  In light of the aforesaid I have good prospects of success on the main matter under Case No LC/H/984/24 as more fully appears in the Draft Appellant’s Heads of Argument hereto attached copy marked B.”

The relevant part of respondent’s opposing affidavit reads thus,

“6.	Before dealing with the merits of this application for reinstatement I wish to raise a preliminary point.  Reinstatement in terms of Rule 46 can only be ordered on good cause shown upon application made within 21 days of the abandonment.  Per Rule 46 the last day an application for the reinstatement of Appeal LC/H/984/24 could be made was the 21st of November 2024.  The date of abandonment was 23rd October 2024.

7.	This application was only filed on the 20th of December 2024 and cannot therefore be entertained by this Honourabe Court.  It is accordingly prayed that the application be dismissed with costs without going into the merits.”

Analysis

Rule 46 of the Court’s Rules reads,

“Where for any reason-

proof of service is not filed by the applicant or appellant with the Registrar in the manner and time prescribed;

the Registrar does not receive heads of argument from an applicant or appellant who is represented  by a legal practitioner or representative within the prescribed period;

the matter shall be regarded as abandoned and the Registrar shall inform the parties accordingly:

Provided that the matter may be reinstated by a Judge in chambers on good cause shown upon application made within twenty-one days of the abandonment.”

The proviso to the Rule requires that the application be made within 21 days of abandonment.  The present application was made 2 months after abandonment.  It is out of time.  Failure to comply with the mandatory provisions of the Rules renders an application a nullity.  The Court is fortified in this view by the case of

Mazambani vs International Export 2020 (1) ZLR 1418 (S)

Per Mathonsi JA at 1423D

“The authorities make it clear that every notice of appeal must strictly comply with the mandatory provisions of the rules of court and that a failure to comply with the mandatory provisions of the rules renders an appeal a nullity.”

By party of reasoning the failure of the present ‘application’ to comply with the mandatory time limits in  Rule 46 renders the ‘application’ a nullity.

Wherefore it is ordered that

The matter be and is hereby struck off the roll by reason of a fatally defective application; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E