Charles Mapfumo & 2 Others v Cargo Management Service (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/11/2020
HARARE, 7 NOVEMBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/11/2020

HARARE, 7 NOVEMBER 2019		     	     CASE NO. LC/H/APP/145/19

XREF: LC/H/APP/253/18

AND 24 JANUARY, 2020

In the matter between:-

CHARLES MAPFUMO						1st Applicant

DIDYMUS KHAMA							2nd Applicant

REUBEN JOSEPH							3rd Applicant

AND

CARGO MANAGEMENT SERVICE (PVT) LTD		Respondent

Before The Honorable L. Hove, Judge:

For Applicant				K. Ncube & Partners (Legal Practitioners)

For Respondent			Coghlan, Welsh and Guest (Legal Practitioners)

HOVE J:

This is an application for the reinstatement of a matter, which had initially been struck off the Roll.

On 6 February 2019, the court struck off the Roll the applicant’s application for condonation by consent of the parties on the basis that the matter was improperly before the court.

The appellants in March 2019 filed this application for the reinstatement of their matter. This application was filed in terms of Rule 36 which allows a party to apply to the court for reinstatement of a matter which is deemed abandoned in terms of the Rules.

The Respondent raised preliminary points arguing that the matter was still improperly before the court in that it was filed out of time. It was argued that in terms of practice directive number 3/2013, matters which are fatally defective are struck off the Roll. When a matter is struck off the Roll, it is nolonger before the court. The defaulting party will then have 30 days within which to rectify the defect. Should the party fail to rectify the defect within 30 days, the matter will be deemed to have been abandoned. When a matter is deemed to have been abandoned, an application for its reinstatement can be made to a Judge and for good cause shown, the matter may be reinstated on such terms as the Judge deems fit.

In casu, the 30 days within which the applicant was supposed to act are computed from the date of the order ie from 6 February 2019. The applicant ought to have filed a new application which complies with the rules by 20 March 2019. The application was filed on 5 March 2019. The application was filed within the prescribed 30 days.

In opposing the application, the Respondent’s legal practitioners submitted that the court struck the matter off the Roll in chambers on 21 January 2019, some 42 days after the matter was struck off the Roll. It was argued that the applicants failed to rectify the defect within the 30 day period prescribed under Practice Directive 3 of 2013. The application should therefore be dismissed for none compliance with Practice directive 3 of 2013.

I have counted the working days from 21 January 2019 to 5 March 2019 and there are 31 working days and not 42. The applicant would be one day out of time. The delay is not inordinate and the court would be inclined to condone the failure to comply with the practice directive in the interest of Justice as prayed for by the applicant. In any case, the order that struck the matter off the Roll was issued on the 6th February 2019, and from the 6th of February 2019 to 5 March 2019, the applicants are well within the prescribed time.

The facts clearly show that there is no merit in this preliminary point raised by the Respondent and it must be dismissed.

The other issue raised was that the applicants ought to have filed a new application which complied with the rules, that is a court application for condonation and extension of time within which to file an appeal. It was submitted that the applicants had filed a wrong application.

In support of their argument, the Respondent placed reliance on the case of Bindura Municipality v Paison Chikeya Mugogo SC 32/2015 wherein the court stated as follows;

“It however seems to me that the applicant has filed a wrong application where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such is

a nullity… the appeal having been found to be fatally defective, cannot be reinstated after being struck off the Roll. The applicant’s remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal. He should do so within the period of thirty days provided for in the practice Directive”.

The position is now trite that a notice of appeal which does not comply with the rules is fatally defective and invalid. In Jensen v Acavalos 1993 (1) ZLR 216 at 220B (S) the honourable Judge of appeal stated 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, it must be struck off the Roll…”

What these authorities establish is that the current application is improperly before the court, the applicants ought to have filed a new application that is in compliance with the rules. They cannot seek to amend a nullity. The authorities are clear that an application which is fatally defective for failure to comply with the rules is indeed not only bad but incurably bad. So the application that was struck off the Roll cannot be cured.

The current application fails in this regard to comply with the law. The original application being a nullity, cannot be reinstated. A new application that complies with the rules ought to have been filed.

In the circumstances, the court finds that the current application is itself a nullity and must be struck off the Roll.

The following order is appropriate under the circumstances;

Order:

Application be and is hereby struck off the Roll with each party bearing its own costs.

Kossam Ncube & Partners	-	Applicant’s Legal Practitioners

Coghlan, Welsh & Guest	-	Respondent’s Legal Practitioners