Rock Chemical Fillers v Kenneth Natingenga & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/100/2021
HARARE, 24 MARCH, 2021
CASE NO. LC/H/APP/698/18
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/100/2021

HARARE, 24 MARCH, 2021		    	     CASE NO. LC/H/APP/698/18

AND 16 JULY 2021				      XREF: LC/H/APP/902/15

In the matter between:-

ROCK CHEMICAL FILLERS					Applicant

Versus

KENNETH NATINENGA						1st Respondent

TEMBA TARANJA							2nd Respondent

SANATOR MUTIMBANYOKA & 6 OTHERS			3rd -9th Respondents

Before The Honorable L. Hove, Judge:

For Applicant:			Mr T. Tanyanyiwa Snr (Tanyanyiwa & Associates)

For Respondents:                        Ms R. C. Muchenje (Mbidzo Muchadehama)

HOVE J:

This is an application made in terms of section 92 (C) (1) (C) of the Labour Act [Chapter 28:01].

The applicant seeks to have this court rescind an order it made on 10 May 2016 striking the matter off the Roll. About 3 months after the matter had been struck off the roll the applicant wrote to the Registrar expressing surprise that the matter had been struck off the Roll when they had requested that the matter be set down some 14 months earlier.

The application was opposed and the respondent raised a preliminary point that the application was fatally defective as it is not in terms of Rule. The rule provides that a court application shall be in Form LC1. The application on record is not made in terms of rule 14.

Form LC1 provides in paragraph 2 of its body as follows;

“Further take notice that if you wish to oppose the application you are required to file a notice of opposition together with an affidavit setting out the basis of the opposition within ten (10) working days”.

The form that the applicant used is different from LC1 in that it omits the whole of the above paragraph. It therefore fails to advise the respondent of its procedural rights or obligations.

This omission is material as it informs the respondents what they should do if they intend to oppose the application and the time limits within which to act. It is so material a defect and a departure from the Form LC1 that the application cannot be said to be in Form LC1.

The application is therefore rendered fatally defective, it does not comply with the peremptory provisions of the rules. Rule 14 provides that the applicant shall be in form LC1. This shows that it is mandatory that the application should be in Form LC1 and not some modified version as is the case in casu.

By reason of the application being fatally defective, there is no application before the court. The court cannot correct the fault as there is nothing before it to condone.

In the case of Print Africa (Pvt) Ltd v Moses Mpofu and another HH 249/10 GOWORA J stated that laxity on the part of the court in dealing with non-observance of the rules will encourage some legal practitioners to disregard the rules of court to the detriment of the good administration of Justice.

Further, when a litigant fails to comply with peremptory provisions of the rules, it renders the application fatally defective, the Act is void. In Mcfoy v Africa United Company Ltd (1961) ALLER 1169 the court observed that if an act is void, then it is a nullity, it is not only bad but incurably bad. The court cannot correct a nullity.

The Supreme Court in S v Mc nab 1986 (2) ZLR Z80 (S) held that the non-observance of the rules in detrimental to the administration of justice and the court will not be lax in dealing with non-observance of the rules.

Where the rules of court are specific that a court application shall be in form LC1, a legal practitioner should comply with the mandatory provision.

The application is fatally defective and as a result and under the circumstances, the application must be struck of the Roll.

Order

The application be and is hereby struck off the Roll.

Messrs Manase & Manase	- Applicant’s Legal Practitioners

Mbidzo, Muchadehama & Makoni 	- Respondent’s Legal Practitioners