Denford N Musarirri & 105 Ors v Beach Consultancy (Pvt) Ltd t/a Aviation Ground Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/201/2016
HARARE, 22 FEBRUARY 2016 &
8 APRIL 2016
CASE NO LC/H/APP/1198/2015
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/201/2016

HARARE, 22 FEBRUARY 2016 &			    CASE NO LC/H/APP/1198/2015

8 APRIL 2016

In the matter between

DENFORD N MUSARIRI & 105 ORS				           APPLICANTS

Versus

BEACH CONSULTANCY	(PVT) LTD					RESPONDENT

t/a AVIATION GROUND SERVICES

Before the Honourable L F Kudya J

For the Applicants     C Chisasa (Trade Unionist)

For the Respondent    C Mugabe (Legal Practitioner)

KUDYA J:

This is an application for the reinstatement of an appeal which was struck off the roll on 29 May 2015 on account of ill citation of the parties in the matter. The application is at the instance of the applicant employees who submitted that they have now regularised the position by citing all of them employees in their individual capacities pitted against the respondent employer.

Previously the parties had been cited as the workers committee against the respondent employer. The reinstatement application was opposed by the respondent. In that regard the employee took points in limine which it argued should dispose of the matter. This judgment therefore primarily addresses those points in limine. The points which were taken by the respondent were the following:

One Denford Musariri who deposed to the founding affidavit used to support the reinstatement application lacks the requisite authority to bring an application for and on behalf of the rest of the cited applicants. No proof of such lawful authority was tendered hence the rest of the applicants have failed to show that they have an interest in the matter.

The application should therefore be dismissed with costs on a punitive scale as such application is wrongly before the court on the above account.

The applicants are reinstating a matter where they have failed to demonstrate their locus standi and the reference of the case remains the same as that of the struck off matter hence parties still lack locus standi in the matter.

The application is incompetent for want of procedure. Rules of court do not provide for a reinstatement of an appeal but rather a lodging of a fresh appeal. The court dealt with the matter and handed down judgment and such judgment cannot be reversed by an application of this nature. To that end the application needs to be dismissed with costs on a punitive scale. In the result the respondent prayed that the application be dismissed on account of the raised points in limine.

On the other hand the appellants were adamant that the points in limine lacked merit. They argued that:

The application is properly before the court because it is made in compliance with the Labour Court Rules requirement that such an application be made on Form LC1. It was so made and filed by Chisasa the Chairperson of the National Airways Workers Union who is legally able to do so as per section 92 of the Act allowing for union representation. Musariri’s affidavit is not peremptory hence cannot nullify the application. Action is only to be brought per LC1 form which was done in this case. The point should therefore fail.

In relation to procedure application is properly before the court since the parties have been altered to reflect all the individuals in the matter. Besides, Practice directive 3 does not prescribe the form which a purging of defects in a matter struck off should take. Labour matters need not be decided on technicalities and the point should therefore fail.

Each of the points is addressed below.

Point 1

It is settled law that once there is an irregularity attendant to a matter that has to be put right see Nyahuma v Barclays Bank (Pvt) Ltd 2000 (2) ZLR 445 (S). In instant case it is clear that the matter which was struck off was struck off as such because the parties had been ill cited on it. The fact that the applicants have now taken the same matter and simply added names to it does not cure the defect. It is trite law that one cannot put something on a nullity. See McFay v United Company Ltd 1961 (3) ALL ER 1169 (PC). It is clear that the struck off appeal was a nullity and it cannot be amended in the manner which the applicants have sought to do in the instant proceedings. This point being well placed should succeed.

Points 2 and 3

These are intricately linked hence their disposal at same time. As indicated in point 1 above there is no legal procedure styled reinstatement of an appeal. It is repeated that a nullity cannot be amended. The use of LC1 does not cure the defect attendant on the matter. Same applies to silence on format in the practice directive 3. It does not give licence for a party to amend a null and void appeal by simply adding on to it the names of the parties. The court is satisfied that the points taken by the respondent are well taken and they should succeed.

IT IS ORDERED THAT:

Points in limine raised by the respondent being with merit they be and hereby succeed. The application being ill placed is once again struck off the roll with costs on an attorney and client scale.

Lunga Gonese Attorneys, respondent’s legal practitioners