Walter Mushure v Delta Beverages

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Case No. LC/H/1187/24
Judgment No. LC/H/342/25
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Case No. LC/H/1187/24

Judgment No. LC/H/342/25

WALTER MUSHURE VS

DELTA BEVERAGES

THE LABOUR COURT OF ZIMBABWE BULAWAYO, 3 MARCH 2025, 23 SEPTEMBER 2025

For the applicant	; Mr. Tambanewenya For the respondent ; Mr. P.Dube

JUDGEMENT

HOVE J: This is an application for condonation for the late filing of an application for leave to appeal and for an extension of time within which to file the leave to appeal and leave to appeal in terms of section 92F (2) of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules, 2017.

This is a composite application seeking condonation and extension of time within which to file an application for leave to appeal a judgement of this court issued on 18 July 2024 striking off the roll an application by the applicant in casu as being improperly before the court and an application for leave to appeal.

When the matter came up for hearing, both parties raised preliminary point which will be the subject of this appeal. The outcome of the preliminary points will determine whether the matter can proceed to be decided on the merits.

PRELIMINARY POINTS

The respondent argued that the founding affidavit is fatally defective.	This is so because the face of the application and the documents attached therein bear the name Walter

Mushure whilst the signature page has the name Wishmore Mushure. It was submitted that this irregularity renders the application a nullity.

The applicant then filed an answering affidavit attempting to rectify the defect. The position of law is however that an application will stand or fall on the basis of its founding papers. The founding papers show that the person who signed the founding affidavit was Wishmore Mushure when the face of the application and documents show the name Walter Mushure.

The Supreme Court in Chiangwa and others V AFM of Zimbabwe and others SC67/21 stated as follows;

“another established principle of our law is that an applicant’s cause stands or falls on his founding affidavit and not in the answering affidavit while the defence of a respondent’s case stands or falls on his opposing affidavit.”

As argued by the respondent, the applicant cannot use an answering affidavit to supplement a founding affidavit. In any event, the answering affidavit is improperly before the court as no application was made to file the answering affidavit which is not provided for by the rules.

Rule 26 (6) provides as follows;

“If after heads of arguments have been lodged with the Registrar, no further papers maybe lodged without the leave of court.

Another preliminary point raised is that the draft order is defective.

The draft order reads in part as follows;

The application for condonation of late noting of appeal be and is hereby granted.

The applicant be and is hereby ordered to file their appeal with either this Honourable Court or the Labour Officer within 10 days of granting of this order.

No order as to costs;

The respondent argued that the draft order did not bear the exact nature of the relief sought and is not clear. The applicant has not decided which court he wants his appeal to fall. The draft order says an appeal should either be filed before the Labour Officer or the Labour Court.

The court agrees that the position as stated in Sambaza V AI Shams Global BVI Ltd SC 3/18 that an exact nature of the relief sought must be stated to inform the court about the nature of the order sought. The appellant must not leave it to the court to think for him and draft an order for him again in Munyaradzi V Sarundera and others SC 75/17 the Supreme Court stated that the relief sought must be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.

The second preliminary point, as does the first, has merit and the appeal must be struck off the roll with costs.

In their heads of arguments the point is made that the respondent is barred for failing to file their notice of opposition outside the 10 days prescribed in terms of the rules. The computation by the applicant however fails to take into account the fact that the 18th of April was a holiday and the 22nd of April was therefore within the prescribed 10 days. In the circumstances, the notice of opposition was filed within the prescribed time period and the respondents were not barred.

In the result the following order is made;

ORDER:

The preliminary point raised by the applicant is without merit and it be and is hereby dismissed.

The two preliminary points raised by the respondent being with merit are hereby upheld.

The application by the applicant for condonation and extension of time within which to file an application for leave to appeal this court’s judgement be and is hereby struck off the roll with costs.

The court having upheld the respondent’s preliminary points and struck off the appeal, merits of the application cannot now be determined.