Zephania Nyandoro V Steel Partners (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
JUDGMENT NO. LC/H/140/24
CASE NO. LC/H/314/23
17 OCTOBER 2023 AND 27 MARCH 2024
IN THE MATTER BETWEEN:-
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IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE
17 OCTOBER 2023 AND 27
MARCH 2024

IN THE MATTER BETWEEN:-
ZEPHANIA NYANDORO
AND
STEEL PARTNERS (PRIVATE) LIMITED

Before Honourable Mr. Justice L.M. Murasi

For Appellant    Mr. T.E. Mudzuri
For Respondent    Mr. G.T. Kavuru

MURASI J.,

This matter was struck off the roll on 17 October 2023. Appellant’s legal practitioners have requested for reasons therefore. This Court makes the observation that these reasons were only requested after an application for reinstatement of this matter was also struck off the roll on 21 March 2024 as being improperly before the Court. However, the following are the reasons as requested by the Appellant’s legal practitioners.

During the proceedings, it was pointed out to Mr. Mudzuri that Appellant had not filed the requisite documents as provided in Rule 19 (1) (b) of the Labour Court Rules, 2017. He sought the Court’s indulgence to have the matter postponed in order to file the documents. The response from Mr. Kavuru was that Mr. Mudzuri was supposed to be aware of the necessary procedure to remedy the situation.

Clearly, the Appellant had not filed the required documents as prescribed in Rule 19 (1) (b) of the Labour Court Rules. The wording of that Rule is peremptory. In Jonathan Nathaniel Moyo and Others v Austin Zvoma and Another SC28/10, CHIDYAUSIKU CJ quoted his words in Doctor Daniel


Shumba and Anor v The Zimbabwe Electoral Commission and Anor
SC 11/08 as follows:

“It is the generally accepted rule of interpretation that the use of the peremptory words such as ‘shall’ as opposed to ‘may’ is indicative of the legislature’s intention to make the provision peremptory. The use of the word ‘may’ as opposed to ‘shall’ is construed as indicative of the legislature’s intention to make the provision directory. In some instances the legislature explicitly provides that failure to comply with a statutory provision is fatal.”

In **Jensen v Acavalos** 1993 (1) ZLR 216, KORSAH JA reasoned that by the use of the word ‘shall’ compliance with the requirement in the Supreme Court rule 29 was peremptory and that a failure to comply with the rule rendered the Notice of Appeal a nullity. Further it was held that such a notice could not be condoned or amended. The Learned jurist went further and stated thus:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

This is the predicament into which the Appellant’s Notice of Appeal fell into. The non-compliance with Rule 19 (1) (b) of the Labour Court Rules rendered the Notice of Appeal void and it became a nullity. In that respect, the Court issued the Order as follows:

1. The appeal is hereby struck off the roll by reason of non-compliance with Rule 19(1) (b) of the Labour Court Rules, 2017.
2. There is no order as to costs.
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