Munyaradzi Donhedzai & others v Rural Electrification Authority

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/48/24
HARARE 13 NOVEMBER,2023
CASE NO. LC/H/918/22
AND 12 JANUARY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 13 NOVEMBER,2023

AND 12 JANUARY, 2024

In the matter between: -

JUDGMENT NO. LC/H/48/24 CASE NO. LC/H/918/22

Munyaradzi Donhedzai & others	Applicants

Versus

RURAL ELECTRIFICATION AUTHORITY	Respondent

Before the Honourable L. Hove, Judge:

For applicants :	in person

For respondent :	Ms H.Madzongwe

This is an application by the applicants seeking condonation of late noting of an application for recession of court order number LC/H/ORD/98/15.

The applicants in their draft order however seek not only the setting aside of LC/H/ORD/98/15 but also the setting aside of a judgment in case number LC/H/28/2017 and awards by arbitrators who had also dealt with the matter before it was placed before the Labour Court.

The order that is being sought to be set aside was issued in 2015 on the basis that the applicants lacked good prospects of success.

The judgement that is also being sought to be set aside was handed down in January 2017. The arbitrary awards to be set aside have not been specified needless to say that one cannot set aside a judgement which is not the subject matter of the application for condonation. (the application only seeks to have rescinded order LC/H/ORD/98/15). Further it goes without saying that the applicants cannot seek to set aside arbitral awards which have not been specified and which are not related to in the application.

There is a recklessness in the manner that the applicants have sought to bring their claims. The respondent opposed the application and brought these very issues up as a preliminary points.

Preliminary points

It was argued by the respondent that the relief sought is defective in that it is different to what has been pleaded in the application for rescission. In the application the applicant allege that the application is one seeking condonation and yet in the draft order they seek the setting aside of also an extant Judgement of this court and arbitral awards, one cannot plead something and pray for something entirely different in the draft order.

In Tradepass Marketing Services (pvt) Ltd t/n Agrisec Environmental Health v OK Zimbabwe and anor SC 157/18 the Court held that if a point in limine is sustained, this would dispose of the whole matter without further ado. Several preliminary issues have been raised. The Court will first consider if the relief sought is defective.

The relief sought is clearly defective in that the relief sought is different from the case that the applicants have pleaded. This renders the whole application fatally defective. The result is that the matter must be struck off the roll.

The application is also fatally defective for the applicants’ failure to bring it in terms of the rules which require that an application should be brought in form LCI see rule 14(1) of the Labour Court Rules, 2017.

The application is further fatally defective in that the other applicants did not file supporting affidavits at the time of the filing of the application. The other applicants only sought to file the supporting affidavits after the filing of the application. The application was filed in October 2022 and the other applicants only filed their supporting affidavits in an application to file supplementary affidavit after the effect. This makes the application fatally defective in relation the other purported applicants. The supplementary affidavits were filed by way of an application to file supplementary affidavits in November 2023. The application to file supporting affidavits where filed more than one year later.

This is a fatal failure to comply with rule 14 of the Rules of Court.

Further, the application was served on the respondents way out of time. Rule 14 (4) provides that service must be within 5 days of the filing of the application but applicants’ served the respondent on 14 October 2022 after it had filed its application on 4 October 2022.

All these fatal defects were not denied by the applicants. They are in any case evident from the papers filed of record.

Failure to comply with rules of the court renders the application fatally defective and therefore nullity this court cannot even allow the amendment of a nullity.

See in this regard the case of Print Africa (pvt) Ltd v Moses Mpofu & anor HH 249/10 where the Court said

“it is my opinion that laxity on the part of the Court in dealing with non-observance of the rules will encourage some legal practitioners (or litigants) to disregard the rules of Court to the detriment of the good administration of Justice.”

In the result, the application is struck off as being fatally defective.