Barnabus Marau v NetOne Cellular (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/229/25
HARARE, 23 JUNE 2024
CASE NO LC/H/407/25
BARNABUS MARAU
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 23 JUNE 2024

BARNABUS MARAU

NETONE CELLULAR (PVT) LTD

JUDGMENT NO LC/H/229/25

CASE NO LC/H/407/25

APPELLANT

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant

For Respondent

- P. Gomo, Attorney

-H. Madzongwe, Attorney

MUSARIRI, J:

Appellant appealed to this Court against a determination issued by Designated Agent P. Mgazi. The appeal is provided for by section 92 D of the Labour Act Chapter 28:01 as read with Rule 19 of the Labour Court Rules, 2017.

At the onset of oral argument, respondent raised a point in limine. The point was to the effect that the notice of appeal is invalid for failure to attach the impugned determination.

Rule 19 (1) provides that

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JUDGMENT NO LC/H/229/25 CASE NO LC/H/407/25

“A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the when the appellant receives the decision, determination or direction or award, do the following-

(a) complete in three copies a notice of appeal in Form LC4;

(b) make three copies of any of the documents referred in subparagraphs (i) to (iv) as are relevant to the appeal, if they are in the possession of the appellant-

(iii)a minute or record of any decision, determination, direction or award made at the conclusion of any proceedings or hearing referred to in subparagraph (ii);

(d) file with the Registrar one of the other copies of the notice of appeal, together with

(i) a copy of the documents, if any, referred to in paragraph (b);

The sub-Rule basically requires an appellant to file his notice of appeal together with the

impugned determination. The requirement is concluded in peremptory terms by the use of the word “shall”.

Failureto comply with mandatory requirements of aruleof the court renders the non-compliant

appeal a nullity. That much was restated in the Supreme Court case of

Mazambani v International Export 2020 (1) ZLR 1418 (S) Per Mathonsi JA at 1423 (1)

“In terms of Rule 37 (1) (e) of this Court’s rules, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner and shall state the ‘exact relief sought.’ 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.”

Appellant sought to argue that Respondent’s point amounts to a technicality in light of the fact that the determination was filed this morning. It was claimed that a clerical error resulted in the failure to attach the determination. The argument is misconceived. The point is that the notice of appeal was invalid on the date of its filing. Nothing can be founded upon a nullity. It cannot be cured or condoned. Period.

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JUDGMENT NO LC/H/229/25 CASE NO LC/H/407/25

Wherefore it is ordered that

1. The matter be and is hereby struck off the roll because of a fatally defective notice of appeal; and

2. Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E

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