Fanuel Masunda v Ministry of Agriculture Mechanisation & Irrigation Department

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/474/16
HELD AT HARARE 30 JUNE 2016
CASE NO
JUDGMENT NO LC/H/474/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/474/16

HELD AT HARARE 30 JUNE 2016				CASE NO LC/H/APP/698/15

& 19 AUGUST 2016

In the matter between:

FANUEL MASUNDA						Applicant

And

MINISTRY OF AGRICULTURE MECHANISATION		Respondent

& IRRIGATION DEPARTMENT

Before The Honourable Muchawa, J

For Applicant			Mrs S R Ratisai (Legal Practitioner)

For Respondent		H Magadure (Civil Division)

MUCHAWA J:

This matter is an application for reinstatement of an appeal which was struck off the roll by Honourable Justice Makamure on 26 January 2015.  The reasons for the order were delivered on 6 February 2015.  The reasons given for the striking off were that there was no proper defendant cited, as the applicant had cited the Ministry of Agriculture which is not a legal persona at law.  It was also observed that the applicant had raised grounds dealing with procedural irregularities which therefore qualified as grounds for review and not appeal.

The applicant filed this present application on 11 June 2015 seeking reinstatement of the appeal.

The respondent has raised objections in limine.

Applicant is barred

The first point raised in that the applicant is barred in terms of Rule 19 (3) (b) of the Labour Court Rules, Statutory Instrument 59 of 2006 for failure to file heads of argument timeously.

This point was upheld at the hearing.  The respondent filed its notice of response to the appeal on 30 June 2015.  The applicant did not file his heads of argument within 14 days of this date nor did he apply for condonatuion.  Heads of argument were only filed on 9 May 2016 well after the respondent’s heads of argument filed on 22 April 2016.

I proceeded in terms of Rule 19 (3) (b) to hear the respondent so as to determine the matter on the merits.

Applicant’s application is out of time

The respondent referred to Practice Direction 3/2013 to argue that the application is out of time and is therefore improperly before the court.

Paragraph 5 of Practice Direction 3/2013 provides that where a matter has been struck off the roll for failure by a party to abide by the rules of the court, the party will have thirty days within which to rectify the defect, failing which the matter will be deemed to be abandoned.

There is no application for condonation even though at the time of noting the application, the applicant was some three months late filing this application.  In Forestry Commission v Moyo 1997 (1) ZLR 254 (SC) a matter brought out of time without the court granting condonation upon application, was said to be improperly before the court.  So is this application.

Applicant has brought the wrong application

The respondent argues that the applicant has brought the wrong application before this court.

Reference was made to the case of Jensen v Acavalos 1993 (1) ZLR 216 at 220 B (S) to argue that a notice of appeal which does not comply with the rules is fatally defective and invalid and consequently a nullity.  Such nullity is said to be incurably bad 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.  If not such a matter should be struck of the roll.

I was also referred to the case of Bindura Municipality v Paison Chikeya Mugogo SC 32/2015 in which GUVAVA JA interpreted paragraph 5 of practice direction 3/2013.

It was held therein as follows,

“It seems to me that a proper interpretation of paragraph 5 of the Practice Direction 3/13 is that the applicant must, within thirty days rectify the defect by applying for condonation for the late noting of an appeal and an extension of time within which he should comply with the rules.  He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned.  It is seems to me that the period within which to rectify the defect was included in the practice directive in order to manage cases which would have been struck off the roll so that the registry would not be littered with dead files.  Thus a litigant who wishes to pursue his matter was granted a limited time within which to apply to cure the defect, failing which the matter would be deemed abandoned.”

My considered opinion is that the matter in casu is distinguishable from that in  Bindura Municipality v Paison Chikeya Mugogo supra.  Whereas that case clearly deals with a matter struck off for failure to comply with the rules, the matter in casu falls into the  matters described in paragraph 3 of Practice Direction 3/2013.  This paragraph states

“The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.”

This matter was not struck off for failure to comply with the rules.  Paragraph 4 of the practice direction cites the case of Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).  What this means is that the appeal that was struck off is no longer before the court.  Its re-enrolment follows an application for an appropriate order.  Such an order in my opinion cannot be one to reinstate the matter.  As stated by GUVAVA JA, the proper application should be for condonation and an extension of time within which to file a proper notice of appeal.  See also Jensen v Acavalos 1993 (1) ZLR 216 at 220 B (S) and Hattingh v Pienaar 1977 (20 SA 182.

Accordingly the points in limine are upheld and the application is struck of the roll.

Messrs Ratisai Law Practice, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners