Zimbabwe National Network of People Living with HIV (ZNNP+) v Muchanyara Mukamuri & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 13 MARCH 2025
JUDGMENT NO. LC/H/114/25
CASE NO. LC/H/61/25
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 13 MARCH 2025

AND 14 MARCH 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/114/25 CASE NO. LC/H/61/25

ZIMBABWE NATIONAL NETWORK OF

PEOPLE LIVING WITH HIV (ZNNP+)	APPLICANT AND

MUCHANYARA MUKAMURI	FIRST RESPONDENT

LETWIN SIGAUKE N.O.	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Ms. C. Mahlangu

For First Respondent	Ms. N. Mangoi No Appearance for Second Respondent

MURASI J.,

“It is deplorable that the Rules of Court are not studied or taken seriously by the legal practitioners who practice in those courts. It is part of a legal practitioner’s legal duty to his client to ensure that he is well versed in the Rules of the Court in which he appears on behalf of his client. Not to be conversant with the Rules constitutes, in my view, gross negligence on the part of a legal practitioner vis a vis his client” (per ZIYAMBI JA in Innocent Kadungure v Cheryl Chandi Kadungure SC 19/07)

At the commencement of the hearing, Ms. Mangoi stated she had several points in limine to raise. She submitted that the first point related to the filing of the application for leave to appeal to the Supreme Court. She averred that the application was filed out of time as the dies induciae had lapsed on 23 January 2025 and the present application filed on 24 January 2025 at 10.41 hours. She also submitted that this had been done without the Applicant seeking condonation of the late

filing of the application. She also averred the IECMS system captured the real times when a litigant filed documents with the Registrar. Ms. Mangoi added that regardless of the lateness of the application, Applicant’s Counsel remained adamant and had not sought any condonation. She further argued that Applicant that Applicant could not rely on Dalny Mine v Musa Banda as the Learned Judge in that case had clarified procedural irregularities ought to be set right and are not supposed to be ignored.

The second point related to the fact that Applicant had filed an Answering Affidavit which was not provided for in the Rules. In any event, she submitted, Applicant should have sought leave of the Court to do so and such documents should be expunged from the record.

The last point raised by Ms. Mangoi concerned the draft Notice of Appeal which stated was fatally defective. She argued that the Notice of Appeal did not have a substitutive prayer as required. She prayed that the application for leave to appeal to the Supreme Court should accordingly be struck off the roll with costs.

In response, Ms. Mahlangu stated that she would start with the last point raised by the First Respondent. She argued that the Notice of Appeal was not defective as an appellant must seek to have the judgment a quo set aside. She also stated that there was no pending appeal before as this was a Draft Notice of Appeal which is placed before the Court for it to appreciate the grounds of appeal being taken to the Supreme Court. She argued that the Notice of Appeal clearly stated that the ‘appeal should succeed’.

As far as the first point was concerned, Ms., Mahlangu stated that the application in question was uploaded on 23 January 2025 at 16.27 hours. She added that the subway showed that the Registrar had attended to the application the following day, the 24th of January 2025. She also stated that the Rules as amended, allowed a litigant to file process at any time of the day. She therefore submitted that the application was not filed out of time and the point in limine should be dismissed.

In respect of the second point raised by First Respondent, Ms. Mahlangu conceded that the Answering Affidavit was improperly before the Court and should be expunged from the record.

In response, Ms. Mangoi referred to the Rules, particularly Rule 4A, and stated that the Rules clearly showed the hours of business in which the process had to be filed. Ms. Mahlangu was given an opportunity to comment as this was an issue which required her comments. She did not address the point as raised by Ms. Mangoi and the Court had to urge her to address the issue. No reasonable explanation came from the Applicant’s Counsel.

ANALYSIS

In order to address the first point in limine raised by the First Respondent, it is pertinent that I refer to the Rules. Rule 4A provides:

“Office hours of the Registrar.

The office of the Registrar shall be open from 0830 to 1300 hours and from 1400 to 1600 hours every day which is not a Saturday, Sunday or public holiday.

The Registrar may, in exceptional circumstances, accept a document at a time outside office hour, and shall do so when directed by a judge of the Chief Registrar in writing.

Litigants may electronically file documents at any time of the day.

Notwithstanding subrule (3), the office hours of the Registrar and the dies induciae within which any act must be done shall be observed for the purpose of acceptance of process and documents by the Registrar.”

The above Rules are clear and unambiguous and do not need any tools for interpretation. The simple fact is that documents which are filed by litigants are accepted by the Registrar during and within the working hours stipulated in the Rules. Subrule (4) clearly refers to the issue of the dies induciae and that compliance should be within the stipulated hours of business. Ms. Mahlangu had sought to rely on subrule (3) but then discovered that she was skating on shaky ground. Her argument was based on wobbly stilts and quickly crumbled as it was not supported by the Rules. If her argument is taken to its logical point, the application was filed after the expiry of the dies indiciae when one has regard to the provisions of the Rules. In my view, this was a matter where Applicant should have sought condonation from the Court as it was only out of time by a day. This was not done. A Court cannot grant that which has not been prayed or requested by a litigant. There was indeed no compliance with the Rules.

The responses given by Ms. Mahlangu in respect of the last point shows that she was unaware, ignored or did not want to refer to precedent which is binding on this Court. She averred that the Draft Notice of Appeal was just a draft which was for the purpose of the Court being made aware of what was to be placed in the Supreme Court. In Chamboko v Dorowa Minerals Limited SC 26/15, the Supreme Court had this to say:

“In any case an applicant for leave to appeal file a notice of appeal that conforms to the requirements of the rules of court at the time the application for leave to appeal is made. Where the notice of appeal filed is fatally defective, there is no valid application.”

That puts paid to the argument by Ms. Mahlangu.

Is the prayer defective as alleged by the Respondent? It is couched as follows:

“Wherefore Appellant prays that the Appeal succeeds with costs and that the judgment of the Court a quo be set aside and substituted with the following:

‘The application for reinstatement of an application for leave to appeal to the Supreme Court in LCH 615/24 be and hereby allowed.

The Applicant be and is hereby allowed to file its heads of argument within three (3) days of this order.’”

What is evident is that prayer for the appeal to succeed is contained in the preceding paragraph which is not part of the substitutive order in italics. This issue came up for determination in Fadzai John v Delta Beverages Limited SC 40/17. The prayer in that case was worded in exactly the same manner as the Applicant has done in casu. In that case GUVAVA JA also referred to the case of Ndlovu v Ndlovu SC 133/02 which was a judgment by MALABA JA (as he then was). In the Ndlovu case, it was stated as follows:

“If the appeal is allowed or the decision being appealed against is set aside and a new order substituted in its place, such new order has to be prayed for. It cannot be granted mero motu by the court. The appellant’s Notice of Appeal has to provide for such an order.”

It is also trite that a defective Notice of Appeal affects the application for leave to appeal. Such application cannot stand. As stated by KORSAH JA in Jensen v Acavalos 1993 (1) ZLR 216 (S) at 220:

“..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.. the appeal must be struck off the roll with costs.”

It is my view that the Notice of appeal is defective to the extent as demonstrated in case law and the facts in this case.

There was a concession made by Ms. Mahlangu as regards the second point raised by Ms. Mangoi

and there is no need to revert to it. The points raised by Ms. Mangoi have merit. In the result, the Court makes the following Order:

The points in limine are hereby upheld.

The application for leave to appeal to the Supreme Court is hereby struck off the roll by reason of;

Non-compliance with the rules of court, that is, a failure to file the application within the prescribed period of time.

A defective Notice of Appeal.

Applicant to meet First Respondent’s costs.

Applicant shall not institute any proceedings in this Court, on the same cause of action, without complying with paragraph 3 above or filing evidence of waiver from First Respondent for such non-compliance.

Maposa, Mahlangu Attorneys-	Applicant’s legal practitioners

Matsikidze Attorneys at Law-	First Respondent’s legal practitioners.