Ignatio Kudakwashe Mhene v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/128/25
HARARE, 18 MARCH, 2025 AND
21 MARCH 2025
CASE NO LC/H/34/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/128/25 HARARE, 18 MARCH, 2025 AND

21 MARCH 2025	CASE NO LC/H/34/25

IGNATIO KUDAKWASHE MHENE	APPLICANT

JUDICIAL SERVICE COMMISSION	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- K. Mabaudi, Attorney

For Respondent	- G. Sithole, Attorney

MUSARIRI, J:

Applicant applied for leave to appeal this Court’s judgment to the Supreme Court. The application was made in terms of Section 92F of the Labour Act Chapter 28:01, hereafter called the Act, as read with Rule 43 of the Labour Court Rules, 2017. Respondent opposed the application. At the onset of argument applicant made an oral application for condonation. The application was based on submissions by applicant’s attorney to the effect that;

The impugned judgment was issued by this Court on 12 December 2024.

An aggrieved party had 21 (twenty-one) days within which to appeal the judgment.

The application was registered on the last day.

1

All that was required was for the Registrar to append her signature.

The Registrar appended her signature on the last day.

The application was therefore one day out of time through no fault of the applicant.

The applicant has good prospects of success on the merits.

It is in the interests of justice that the belated filing in these circumstances be condoned.

Respondent opposed the oral application for condonation on the basis that;

Applicant was notified of the non-compliance when opposition was filed.

Applicant was required to seek condonation upon the notification.

Applicant delayed the application in the apparent belief that condonation is there for the asking.

In any event the underlying application is a nullity and therefore there are no prospects of success to speak off.

Analysis

Rule 43 requires that an application for leave to appeal shall be filed within 21 (twenty-one) days of the issue of the impugned judgment. Applicant concedes that his application was filed/registered out of time. That amounts to non-compliance with the Court’s Rules. A non-compliant filing amounts to a nullity. This much was restated in the case of;

Mazambani v International Export 2020(1) ZLR 1418(S)

Per Mathonsi JA at 1423D

“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.”

Underlined for emphasis.

By parity of reasoning the non-compliance with Rule 43 renders the application for leave in casu a nullity. Nothing, including condonation, can be founded upon a nullity which is nothing.

Applicant should have withdrawn the abortive application for leave and filed a proper application for condonation. The oral application for condonation was misconceived and ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The oral application for condonation by applicant, be and is hereby dismissed;

The application for leave to appeal is hereby struck off the roll as a nullity; and

Applicant shall pay half of respondent’s costs.

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